Exhibit 10.1


 


Execution Version


 




 





Published CUSIP Numbers: 00766WAC7


00766WAD5


 


CREDIT AGREEMENT


 


Dated as of September 16,
2010


 


among


 


AECOM TECHNOLOGY CORPORATION,

as the Borrower,


 


BANK OF AMERICA, N.A.,

as Administrative Agent,


 


UNION BANK, N.A.,


BNP PARIBAS,


HSBC BANK USA, NATIONAL ASSOCIATION,


SCOTIABANC INC.


and


WELLS FARGO BANK, N.A.,


as Co-Syndication Agents


 


and


 


The Other Lenders Party Hereto


 


BANC OF AMERICA SECURITIES LLC,


as Co-Lead Arranger and Sole Book Manager


and


UNION BANK, N.A.,


as Co-Lead Arranger


 




 





 

















 


	
  SCHEDULES

  
	
   

  	
   

  	
   

  
	
   

  	
  2.01

  	
  Commitments
  and Applicable Percentages

  
	
   

  	
  5.13

  	
  Significant
  Subsidiaries; Other Equity Investments

  
	
   

  	
  5.18

  	
  Intellectual
  Property; Licenses

  
	
   

  	
  6.10

  	
  Plans
  Permitted

  
	
   

  	
  7.01

  	
  Existing
  Liens

  
	
   

  	
  7.02

  	
  Existing
  and Prospective Minority Investments

  
	
   

  	
  7.03

  	
  Existing
  Indebtedness

  
	
   

  	
  10.02

  	
  Administrative
  Agent’s Office; Certain Addresses for Notices

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  
	
   

  	
  Form of

  
	
   

  	
  A

  	
  Loan
  Notice

  
	
   

  	
  B

  	
  Note

  
	
   

  	
  C

  	
  Notice
  of Conversion/Continuation

  
	
   

  	
  D

  	
  Compliance
  Certificate

  
	
   

  	
  E-1

  	
  Assignment
  and Assumption

  
	
   

  	
  E-2

  	
  Administrative Questionnaire

  
	
   

  	
  F

  	
  Guaranty

  
	
   

  	
  G

  	
  Opinion
  Matters

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  I.

  	
  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.01.

  	
  Defined
  Terms

  	
   

  	
  1

  
	
  1.02.

  	
  Other
  Interpretive Provisions

  	
   

  	
  22

  
	
  1.03.

  	
  Accounting
  Terms

  	
   

  	
  23

  
	
  1.04.

  	
  Rounding

  	
   

  	
  24

  
	
  1.05.

  	
  Times
  of Day

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II.

  	
  THE LOANS

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  2.01.

  	
  Committed
  Term Loans

  	
   

  	
  24

  
	
  2.02.

  	
  Conversions
  and Continuations of Loans

  	
   

  	
  24

  
	
  2.03.

  	
  [Reserved]

  	
   

  	
  25

  
	
  2.04.

  	
  [Reserved]

  	
   

  	
  25

  
	
  2.05.

  	
  [Reserved]

  	
   

  	
  25

  
	
  2.06.

  	
  Prepayments

  	
   

  	
  25

  
	
  2.07.

  	
  [Reserved]

  	
   

  	
  26

  
	
  2.08.

  	
  Repayment
  of Committed Loans

  	
   

  	
  26

  
	
  2.09.

  	
  Interest

  	
   

  	
  26

  
	
  2.10.

  	
  Fees

  	
   

  	
  27

  
	
  2.11.

  	
  Computation
  of Interest and Fees; Retroactive Adjustments of Applicable Rate

  	
   

  	
  27

  
	
  2.12.

  	
  Evidence
  of Debt

  	
   

  	
  28

  
	
  2.13.

  	
  Payments
  Generally; Administrative Agent’s Clawback

  	
   

  	
  28

  
	
  2.14.

  	
  Sharing
  of Payments by Lenders

  	
   

  	
  29

  
	
  2.15.

  	
  [Reserved]

  	
   

  	
  30

  
	
  2.16.

  	
  Optional
  Loans

  	
   

  	
  30

  
	
  2.17.

  	
  [Reserved]

  	
   

  	
  31

  
	
  2.18.

  	
  [Reserved]

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III.

  	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  3.01.

  	
  Taxes

  	
   

  	
  32

  
	
  3.02.

  	
  Illegality

  	
   

  	
  35

  
	
  3.03.

  	
  Inability
  to Determine Rates

  	
   

  	
  36

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  3.04.

  	
  Increased
  Costs; Reserves on Eurodollar Rate Loans

  	
   

  	
  36

  
	
  3.05.

  	
  Compensation
  for Losses

  	
   

  	
  37

  
	
  3.06.

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
   

  	
  38

  
	
  3.07.

  	
  Survival

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IV.

  	
  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  4.01.

  	
  Conditions
  to Funding of Committed Loans

  	
   

  	
  39

  
	
  4.02.

  	
  Conditions
  to all Loans

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  V.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  5.01.

  	
  Existence,
  Qualification and Power

  	
   

  	
  41

  
	
  5.02.

  	
  Authorization;
  No Contravention

  	
   

  	
  41

  
	
  5.03.

  	
  Governmental
  Authorization; Other Consents

  	
   

  	
  41

  
	
  5.04.

  	
  Binding
  Effect

  	
   

  	
  41

  
	
  5.05.

  	
  Financial
  Statements; No Material Adverse Effect

  	
   

  	
  42

  
	
  5.06.

  	
  Litigation

  	
   

  	
  42

  
	
  5.07.

  	
  No
  Default

  	
   

  	
  42

  
	
  5.08.

  	
  Ownership
  of Property; Liens

  	
   

  	
  42

  
	
  5.09.

  	
  Environmental
  Compliance

  	
   

  	
  43

  
	
  5.10.

  	
  Insurance

  	
   

  	
  43

  
	
  5.11.

  	
  Taxes

  	
   

  	
  43

  
	
  5.12.

  	
  ERISA
  Compliance

  	
   

  	
  43

  
	
  5.13.

  	
  Significant
  Subsidiaries; Equity Interests

  	
   

  	
  44

  
	
  5.14.

  	
  Margin
  Regulations; Investment Company Act

  	
   

  	
  44

  
	
  5.15.

  	
  Disclosure

  	
   

  	
  44

  
	
  5.16.

  	
  Compliance
  with Laws

  	
   

  	
  44

  
	
  5.17.

  	
  Taxpayer
  Identification Number

  	
   

  	
  45

  
	
  5.18.

  	
  Intellectual
  Property; Licenses, Etc.

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VI.

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  6.01.

  	
  Financial
  Statements

  	
   

  	
  45

  
	
  6.02.

  	
  Certificates;
  Other Information

  	
   

  	
  46

  
	
  6.03.

  	
  Notices

  	
   

  	
  48

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  6.04.

  	
  Payment
  of Obligations

  	
   

  	
  48

  
	
  6.05.

  	
  Preservation
  of Existence, Etc.

  	
   

  	
  49

  
	
  6.06.

  	
  Maintenance
  of Properties

  	
   

  	
  49

  
	
  6.07.

  	
  Maintenance
  of Insurance

  	
   

  	
  49

  
	
  6.08.

  	
  Compliance
  with Laws

  	
   

  	
  49

  
	
  6.09.

  	
  Books
  and Records

  	
   

  	
  49

  
	
  6.10.

  	
  Inspection
  Rights

  	
   

  	
  49

  
	
  6.11.

  	
  Use
  of Proceeds

  	
   

  	
  50

  
	
  6.12.

  	
  Additional
  Guarantors

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII.

  	
  NEGATIVE COVENANTS

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  7.01.

  	
  Liens

  	
   

  	
  50

  
	
  7.02.

  	
  Investments

  	
   

  	
  51

  
	
  7.03.

  	
  Indebtedness

  	
   

  	
  52

  
	
  7.04.

  	
  Fundamental
  Changes

  	
   

  	
  53

  
	
  7.05.

  	
  Dispositions

  	
   

  	
  53

  
	
  7.06.

  	
  Restricted
  Payments

  	
   

  	
  54

  
	
  7.07.

  	
  Change
  in Nature of Business

  	
   

  	
  55

  
	
  7.08.

  	
  Transactions
  with Affiliates

  	
   

  	
  55

  
	
  7.09.

  	
  Burdensome
  Agreements

  	
   

  	
  55

  
	
  7.10.

  	
  Use
  of Proceeds

  	
   

  	
  55

  
	
  7.11.

  	
  Financial
  Covenants

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII.

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  
	
  8.01.

  	
  Events
  of Default

  	
   

  	
  56

  
	
  8.02.

  	
  Remedies
  Upon Event of Default

  	
   

  	
  58

  
	
  8.03.

  	
  Application
  of Funds

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IX.

  	
  ADMINISTRATIVE AGENT

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  9.01.

  	
  Appointment
  and Authority

  	
   

  	
  59

  
	
  9.02.

  	
  Rights
  as a Lender

  	
   

  	
  59

  
	
  9.03.

  	
  Exculpatory
  Provisions

  	
   

  	
  59

  
	
  9.04.

  	
  Reliance
  by Administrative Agent

  	
   

  	
  60

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  9.05.

  	
  Delegation
  of Duties

  	
   

  	
  60

  
	
  9.06.

  	
  Resignation
  of Administrative Agent

  	
   

  	
  60

  
	
  9.07.

  	
  Non-Reliance
  on Administrative Agent and Other Lenders

  	
   

  	
  61

  
	
  9.08.

  	
  No
  Other Duties, Etc.

  	
   

  	
  61

  
	
  9.09.

  	
  Administrative
  Agent May File Proofs of Claim

  	
   

  	
  61

  
	
  9.10.

  	
  Guaranty
  Matters

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  X.

  	
  MISCELLANEOUS

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  10.01.

  	
  Amendments,
  Etc.

  	
   

  	
  62

  
	
  10.02.

  	
  Notices;
  Effectiveness; Electronic Communication

  	
   

  	
  63

  
	
  10.03.

  	
  No
  Waiver; Cumulative Remedies; Enforcement

  	
   

  	
  65

  
	
  10.04.

  	
  Expenses;
  Indemnity; Damage Waiver

  	
   

  	
  66

  
	
  10.05.

  	
  Payments
  Set Aside

  	
   

  	
  68

  
	
  10.06.

  	
  Successors
  and Assigns

  	
   

  	
  68

  
	
  10.07.

  	
  Treatment
  of Certain Information; Confidentiality

  	
   

  	
  72

  
	
  10.08.

  	
  Right
  of Setoff

  	
   

  	
  72

  
	
  10.09.

  	
  Interest
  Rate Limitation

  	
   

  	
  73

  
	
  10.10.

  	
  Counterparts;
  Integration; Effectiveness

  	
   

  	
  73

  
	
  10.11.

  	
  Survival
  of Representations and Warranties

  	
   

  	
  74

  
	
  10.12.

  	
  Severability

  	
   

  	
  74

  
	
  10.13.

  	
  Replacement
  of Lenders

  	
   

  	
  74

  
	
  10.14.

  	
  Governing
  Law; Jurisdiction; Etc.

  	
   

  	
  75

  
	
  10.15.

  	
  Waiver
  of Jury Trial

  	
   

  	
  76

  
	
  10.16.

  	
  No
  Advisory or Fiduciary Responsibility

  	
   

  	
  76

  
	
  10.17.

  	
  Electronic
  Execution of Assignments and Certain Other Documents

  	
   

  	
  76

  
	
  10.18.

  	
  USA
  PATRIOT Act

  	
   

  	
  77

  



 


iv

















 


CREDIT
AGREEMENT


 


This
CREDIT AGREEMENT (“Agreement”) is entered into as of September 16,  2010,  among AECOM TECHNOLOGY CORPORATION, a Delaware corporation (the “Borrower”),
each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”), and BANK OF AMERICA, N.A.,  as
Administrative Agent.


 


RECITALS


 


The
Borrower has requested that the Lenders provide the Borrower an unsecured term
credit facility in an aggregate original principal amount of $600,000,000, and
the Lenders are willing to do so on the terms and conditions set forth herein.


 


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


 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


1.01.                     Defined Terms.  As used in
this Agreement, the following terms shall have the respective meanings set
forth below:


 


“Acquisition”
means a purchase or other acquisition, direct or indirect, by any Person of all
or substantially all of the assets or all or substantially all of the business
of any other Person or of a line of business of any other Person (whether by
acquisition of Equity Interests, assets, permitted merger or any combination
thereof).


 


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


 


“Administrative
Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders.


 


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


 


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


 


“Aggregate
Commitments” means the Commitments of all the Lenders.


 


“Agreement”
means this Credit Agreement as the same may hereafter be modified, supplemented
or amended from time to time.


 


“Applicable
Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Total Outstandings held by such
Lender at such 


 


1

















 


time
pursuant to its Commitment.  The initial
Applicable Percentage of each Lender is set forth opposite the name of such
Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable.


 


“Applicable
Margin” means the following interest rate margins (expressed in basis
points per annum), based upon the Leverage Ratio as set forth in the most
recent Compliance Certificate received by the Administrative Agent pursuant to Section
6.02(a):


 


	
  Pricing

  Level

  	
   

  	
  Leverage Ratio

  	
   

  	
  Applicable Margin

  for Eurodollar Rate

  Loans

  	
   

  	
  Applicable Margin

  for Base Rate Loans

  
	
  1

  	
   

  	
  <1.00:1

  	
   

  	
  200 basis points

  	
   

  	
  100 basis points

  
	
  2

  	
   

  	
  >1.00:1 but <1.50:l

  	
   

  	
  225 basis points

  	
   

  	
  125 basis points

  
	
  3

  	
   

  	
  >1.50:l but <2.00:1

  	
   

  	
  250 basis points

  	
   

  	
  150 basis points

  
	
  4

  	
   

  	
  >2.00:1 but <2.50:l

  	
   

  	
  275 basis points

  	
   

  	
  175 basis points

  
	
  5

  	
   

  	
  >2.50:1

  	
   

  	
  325 basis points

  	
   

  	
  225 basis points

  



 


Any
increase or decrease in the Applicable Margin resulting from a change in the
Leverage Ratio shall become effective two Business Days after the date that the
Administrative Agent receives a duly completed Compliance Certificate pursuant
to Section 6.02(a); provided, however, that if the
Administrative Agent fails to receive a Compliance Certificate on the due date
therefor provided in Section 6.02(a), then until (but only until) such
Compliance Certificate is thereafter received, the Applicable Margin shall
continue to be based on the Pricing Level then in effect; provided that,
if such Compliance Certificate indicates a change in the Leverage Ratio that
results in an increase in the Applicable Margin, such increase shall be
retroactive to a date two Business Days after the due date for such Compliance
Certificate.


 


As
of the Closing Date, Pricing Level 3 shall apply.  Pricing Level 3 shall remain in effect until
two Business Days after the date that the Administrative Agent receives a duly
completed Compliance Certificate pursuant to Section 6.02(a) as of
December 31, 2010.


 


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


 


“Arrangers”
means, collectively, BAS and Union Bank, N.A., in their capacities as co-lead
arrangers.


 


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


 


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


 


2

















 


“Attributable
Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP, and (b) in
respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP
if such lease were accounted for as a capital lease.


 


“Audited
Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended September 30, 2009, and
the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal year of the Borrower and its
Subsidiaries, including the notes thereto.


 


“Automatically
Continued Loans” has the meaning specified in Section 2.02 (a).


 


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


 


“BAS”
means Banc of America Securities LLC, in its capacities as the Left Lead
Arranger and the Sole Book Manager.


 


“Base
Rate” means for any day a fluctuating rate per annum equal to the highest
of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in
effect for such day as publicly announced from time to time by Bank of America
as its “prime rate,” and (c) the Eurodollar Rate plus 1.00%.  The “prime rate” is a rate set by Bank of
America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate.  Any change in such
prime rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.


 


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


 


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


 


“Borrower
Materials” has the meaning specified in Section 6.02.


 


“Borrower’s
Capital Stock” means all Equity Interests and Common Stock Units of the
Borrower outstanding from time to time and all securities and other property
distributed in respect of or in exchange for such stock.


 


“Borrowing”
means a borrowing hereunder consisting of Committed Loans made to the Borrower
by the Lenders on the Closing Date pursuant to Section 2.01 or Optional
Loans made to the Borrower by one or more of the Lenders on or after the Closing
Date pursuant to Section 2.16.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent’s Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day that is also a
London Banking Day.


 


3

















 


“Capital
Expenditures” means, for any period, the aggregate of all expenditures (whether
paid in cash or accrued as liabilities during that period and including
Capitalized Lease Obligations of the Borrower and its Subsidiaries during such
period) that, in conformity with GAAP, are required to be capitalized and
reflected in the property, plant and equipment or similar fixed asset accounts
in the consolidated balance sheet of the Borrower and its Subsidiaries;
provided, however, that any such expenditures for which another Person is
contractually obligated to pay or otherwise reimburse the Borrower shall be
excluded from the definition of Capital Expenditures.


 


“Capitalized
Lease” means any lease (or other agreement conveying the right to use) of
real or personal property by a Person as lessee or guarantor which would, in
conformity with GAAP, be required to be accounted for as a capital lease on the
balance sheet of that Person.


 


“Capitalized
Lease Obligations” means all obligations under Capitalized Leases of a
Person that would, in conformity with GAAP, appear on a balance sheet of that Person.


 


“Change
in Law” means the occurrence, after the date of this Agreement, of any of
the following: (a) the adoption or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.


 


“Change
of Control” means an event or series of events by which any “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act
of 1934, except that a person or group shall be deemed to have “beneficial ownership”
of all securities that such person or group has the right to acquire, whether
such right is exercisable immediately or only after the passage of time (such
right, an “option right”)), directly or indirectly, of 51% or more of
the equity securities of the Borrower entitled to vote for members of the board
of directors or equivalent governing body of the Borrower on a fully-diluted
basis (and taking into account all such securities that such person or group
has the right to acquire pursuant to any option right).


 


“Closing
Date” means the first date all the conditions precedent in Section 4.01
are satisfied or waived in accordance with Section 10.01.


 


“Code”
means the Internal Revenue Code of 1986.


 


“Commitment”
means, as to each Lender, its obligation to make a Committed Loan to the
Borrower on the Closing Date pursuant to Section 2.01 in an original
principal amount not to exceed the amount set forth opposite such Lender’s name
on Schedule 2.01.


 


“Committed
Loan” means, in respect of a Lender on the Closing Date, the term loan to
be made by such Lender to the Borrower on the Closing Date pursuant to Section
2.01.


 


“Common
Stock” means the common stock of the Borrower.


 


4
















 


“Common
Stock Units” means the common stock units of the Borrower issued from time
to time pursuant to the AECOM Technology Corporation Deferred Compensation Plan
(formerly known as the AECOM Technology Corporation Stock Purchase Plan), as
amended from time to time.


 


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


 


“Consolidated
EBITDA” means, for any measurement period, an amount equal to the sum
of (a) Consolidated Net Income for the period, plus (b) Consolidated
Interest Expense for such period, plus (c) 100% of the principal
contributions for such period accrued for stock match programs for employees,
consultants and Directors for purchases of the Borrower’s Capital Stock, plus
(d) the amount of Taxes expensed, based on or measured by income, used or
included in the determination of Consolidated Net Income for such period, plus
(e) the amount of depreciation and amortization expense deducted in determining
Consolidated Net Income for such period, plus (f) extraordinary losses
included in the determination of Consolidated Net Income for such period, plus
(g) non-cash discounts and matches under 401(k) plans, the AECOM Employee Stock
Purchase Plan or any similar plans and other accrual of stock-based
compensation expense (including stock appreciation rights) for such period, minus
(h) extraordinary gains included in the determination of Consolidated Net
Income for such period; provided, however, that with respect to a
Subsidiary acquired within such measurement period or any proposed Investment
permitted hereunder, the Borrower may also include items (a) through (g) above
for such acquired Subsidiary or such proposed Investment for the entire
measurement period in Consolidated EBITDA for the measurement period to the
extent that either:


 


(A)                              the Borrower has provided to
the Administrative Agent, and shall make available to the Lenders upon request,
(1) financial statements for that entity for the portion of such measurement
period occurring prior to its acquisition or proposed acquisition, and (2) the
most recent year-end audited financial statements for that entity (which
audited statements must be as of a date occurring within five fiscal quarters
prior to the acquisition date (even if such date is prior to the measurement
period and, therefore, such audited statements are not actually used in
computing Consolidated EBITDA for such measurement period)); or


 


(B)                                if the Borrower has not
provided to the Administrative Agent and shall make available to the Lenders
upon request, the audited financial statements for the entity described in
clause (A)(2) above, but the Borrower has provided to the Administrative Agent,
and shall make available to the Lenders upon request, the financial statements
for that entity described in clause (A)(1) above and the most recent unaudited
financial statements for the entity (which unaudited financial statements must
satisfy the timing requirements described in the parenthetical reference in
clause (A)(2) above), provided  that the Borrower may not include
pursuant to this clause (B) more than $15,000,000 of the net sum of items (a) through
(g) above for any single such acquisition or investment, nor more than
$35,000,000 of the net sum of items (a) through (g) above in the aggregate for
all such acquisitions or investments made in any consecutive twelve-month
period.


 


5

















 


“Consolidated
Funded Debt” means, as of any date of determination, all Indebtedness of
the Borrower and its Subsidiaries on a consolidated basis excluding obligations
relating to Performance Contingent Obligations, the Borrower’s payment
obligations with respect to its Preferred Stock and net obligations of the
Borrower and its Subsidiaries under any Swap Contract.


 


“Consolidated
Interest Expense” means, for any period, total interest expense of the
Borrower and its Subsidiaries on a consolidated basis accrued in that period as
shown in the Borrower’s profit and loss statement for that period, determined
in accordance with GAAP, including commitment fees owed with respect to the
unused portion of the Commitments under (and as defined in) the Revolving
Credit Agreement, other fees hereunder, charges in respect of Financial Letters
of Credit, the portion of any Capitalized Lease Obligations allocable to
interest expense, but excluding (i) amortization, expensing or write-off of
financing costs or debt discount or expense, (ii) amortization, expensing or
write-off of capitalized private equity transaction costs, to the extent such
costs are treated as interest under GAAP, and (iii) the portion of the upfront
costs and expenses for Swap Contracts (to the extent included in interest
expense) fairly allocated to such Swap Contracts as expenses for such period,
less interest income on Swap Contracts for that period and Swap Contracts
payments received.


 


“Consolidated
Net Income” means, for any period, the net earnings (or loss) after Taxes
of the Borrower and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period, determined in accordance with GAAP, provided
that there shall be excluded therefrom (a) portions of income properly
attributable to minority interests, if any, in the stock and surplus of such
Subsidiaries held by anyone other than the Borrower or any of its Subsidiaries,
and (b) except as set forth in the definition of Consolidated EBITDA above or
to the extent of dividends or other distributions actually paid to the Borrower
or its Subsidiaries by such Person during such period, the income (or loss) of
any Person accrued prior to the date it becomes a Subsidiary of the Borrower or
is merged with or into the Borrower or any of its Subsidiaries or such Person’s
assets are acquired by the Borrower or any of its Subsidiaries.


 


“Consolidated
Net Worth” means, at any date, the consolidated stockholders’ equity of the
Borrower and its Subsidiaries determined in accordance with GAAP, plus
redeemable Common Stock and Common Stock Units shown on the Borrower’s
consolidated balance sheet, plus an amount equal to the principal amount
or liquidation preference of issued and outstanding Preferred Stock of the
Borrower.


 


“Consolidated
Priority Indebtedness” means all Priority Indebtedness of the Borrower and
its Subsidiaries (but not Tax Arrangement Priority Indebtedness) determined on
a consolidated basis eliminating inter-company items.


 


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


 


“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise 


 


6

















 


voting
power, by contract or otherwise.  “Controlling”
and “Controlled” have meanings correlative thereto.


 


“Customary
Permitted Liens” means (a) Liens (other than Environmental Liens and any
Lien imposed under ERISA) for Taxes, assessments or charges of any Governmental
Authority or claims not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with the provisions
of GAAP, (b) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen, customs and revenue authorities and other Liens (other
than any Lien imposed under ERISA) imposed by law and created in the ordinary
course of business for amounts not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with the
provisions of GAAP, (c) Liens (other than any Lien imposed under ERISA)
incurred or deposits made in the ordinary course of business (including,
without limitation, surety bonds and appeal bonds and Liens securing
obligations under indemnity agreements for surety bonds) in connection with
workers’ compensation, unemployment insurance and other types of social
security benefits, (d) Liens consisting of any right of offset, or statutory or
consensual banker’s lien, on bank deposits or securities accounts maintained in
the ordinary course of business so long as such bank deposits or securities
accounts are not established or maintained for the purpose of providing such
right of offset or banker’s lien, (e) easements (including, without limitation,
reciprocal easement agreements and utility agreements), rights-of-way,
covenants, consents, reservations, encroachments, variations and other
restrictions, charges or encumbrances (whether or not recorded), which do not
interfere materially with the ordinary conduct of the business of the Borrower
or its Subsidiaries and which do not materially detract from the value of the
property to which they attach or materially impair the use thereof to the
Borrower or its Subsidiaries, and (f) building restrictions, zoning laws and
other similar statutes, law, rules, regulations, ordinances and restrictions,
now or at any time hereafter adopted by any Governmental Authority having
jurisdiction.


 


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


 


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


 


“Defaulting
Lender” means any Lender that,
as reasonably determined by the Administrative Agent, (a) has failed to perform
any of its funding obligations hereunder within three Business Days after the date required to be funded by it
hereunder unless the subject of a good faith dispute, (b) has notified
the Borrower or the Administrative Agent in writing that it does not intend to
comply with its funding obligations or has made a public statement to that
effect with respect to its funding obligations hereunder unless the subject of a good faith dispute,
(c) has failed, within three Business Days after written request by the
Administrative Agent, to confirm in a manner satisfactory to the Administrative
Agent that it will comply with its funding obligations, provided that any such
Lender shall cease to be a Defaulting Lender under this 


 


7

















 


clause
(c) upon receipt of such confirmation by the Administrative Agent, or (d) has,
or has a direct or indirect parent company that has, (i) become the subject of a proceeding
under any Debtor Relief Law, (ii) had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or a custodian appointed for
it, or (iii) taken any action in furtherance of, or indicated its consent to,
approval of or acquiescence in any such proceeding or appointment; provided
that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or
indirect parent company thereof by a Governmental Authority.


 


“Default
Rate” means an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate applicable to Base Rate Loans plus (iii) 2% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including
the Applicable Rate) otherwise applicable to such Loan plus 2% per
annum.


 


“Director”
means a member of the Board of Directors of the Borrower.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.


 


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


 


“Domestic
Subsidiary” means any Subsidiary that is organized under the laws of any political
subdivision of the United States.


 


“Eligible
Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), and (v) (subject, in the case of Lenders
invited by the Borrower to make Optional Loans, to such consents, if any, as
may be required pursuant to Section 2.16(c) and, otherwise, to such
consents, if any, as may be required under Section 10.06(b)(iii)).


 


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


 


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


 


8

















 


“Environmental
Lien” means a Lien in favor of any Governmental Authority for any liability
under any Environmental Laws, or damages arising from or costs incurred by such
Governmental Authority in response to a release or threatened release of a
hazardous or toxic waste, substance or constituent, or other substance into the
environment.


 


“Equity
Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the
warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests
in) such Person, all of the securities convertible into or exchangeable for
shares of capital stock of (or other ownership or profit interests in) such
Person or warrants, rights or options for the purchase or acquisition from such
Person of such shares (or such other interests), and all of the other ownership
or profit interests in such Person (including partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such
shares, warrants, options, rights or other interests are outstanding on any
date of determination.


 


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


 


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


 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which such entity was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA or a cessation of
operations that is treated as such a withdrawal under Section 4062(e) of ERISA,
in either case, resulting in material liability to the Borrower; (c) a complete
or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan if there is any potential liability therefor or notification
that a Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate any Pension Plan in a distress termination pursuant to Section
4041(c) of ERISA; (e) the institution by the PBGC of proceedings to terminate a
Pension Plan; (f) any event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Pension Plan; (g) notification of a determination that any
Multiemployer Plan is in endangered or critical status within the meaning of
Section 432 of the Code; (h) the failure to meet
the minimum funding standard of Section 412 of the Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Code) or (i) the imposition of any material liability under Title IV of
ERISA, other than for PBGC premiums due but not delinquent under Section 4007
of ERISA, upon  the Borrower or any ERISA
Affiliate.


 


“Eurodollar
Rate” means:


 


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


 


9

















 


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


 


(b)                                 for any interest calculation
with respect to a Base Rate Loan on any date, the rate per annum equal to (i) BBA
LIBOR, at approximately 11:00 a.m., London time determined two London Banking
Days prior to such date for Dollar deposits being delivered in the London
interbank market for a term of one month commencing that day or (ii) if such
published rate is not available at such time for any reason, the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the date of determination in same day funds in the
approximate amount of the Base Rate Loan being made or maintained and with a
term equal to one month would be offered by Bank of America’s London Branch to
major banks in the London interbank Eurodollar market at their request at the
date and time of determination.


 


“Eurodollar
Rate Loan” means a Loan that bears interest at a rate based on clause (a) of
the definition of “Eurodollar Rate.”


 


“Event
of Default” has the meaning specified in Section 8.01.


 


“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender, or any
other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) taxes imposed on or measured by its overall net
income or gross receipts (however denominated), and franchise taxes imposed on
it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or as a result of a present or former
connection between such recipient and the jurisdiction or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located, (c) any backup withholding
tax that is required by the Code to be withheld from amounts payable to a
Lender that has failed to comply with clause (A) of Section 3.01(e)(ii),
(d) in the case of a Foreign Lender (other than an assignee pursuant to a request
by the Borrower under Section 10.13), any United States  withholding tax that (i) is required to be
imposed on amounts payable to such Foreign Lender pursuant to the Laws in force
at the time such Foreign Lender becomes a party hereto (or designates a new
Lending Office) or (ii) is attributable to such Foreign Lender’s failure or
inability (other than as a result of a Change in Law) to comply with clause (B)
of Section 3.01(e)(ii), except to the extent that such Foreign Lender
(or its assignor, if any) was entitled, at the time of designation of a new
Lending Office (or assignment), to receive additional amounts from the Borrower
with respect to such withholding tax pursuant to Section 3.01(a)(ii)  


 


10

















 


or
(c), (e) any taxes imposed under sections 1471 through 1474 of the Code,
and (f) all liabilities, penalties, and interest incurred with respect to any
of the foregoing.


 


“FASB
ASC” means the Accounting Standards Codification of the Financial
Accounting Standards Board.


 


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


 


“Financial
Letter of Credit” means a standby Letter of Credit supporting indebtedness
owing to third parties.


 


“Fiscal
Quarter” means a fiscal quarter of the Borrower, as the Borrower may
designate in a notice to the Administrative Agent.


 


“Fiscal
Year” means the fiscal year of the Borrower, which shall be the 52-53 week
period ending on the Friday closest to September 30 in each year or such other period
as the Company may designate in a notice to the Administrative Agent.


 


“Fixed
Charge Coverage Ratio” means, as of the last day of any Fiscal Quarter, the
ratio of (A) Consolidated EBITDA for the last four Fiscal Quarters minus
Capital Expenditures for the last four Fiscal Quarters to (B) the sum of (i) Consolidated
Interest Expense during such period, (ii) without duplication, the current
portion (i.e. the portion due and payable within the next twelve months) of
long-term, interest-bearing indebtedness of the Borrower and its Subsidiaries
(meaning for this purpose only, the current portion of long term debt owing to
banks, insurance companies, other financial institutions, and notes issued by
the Borrower or any of its Subsidiaries to shareholders in conjunction with an
acquisition), excluding (a) the final payment of principal on the
Committed Loans and Optional Loans, if any, due and payable on the Maturity
Date and (b) the final payment of principal on the Indebtedness under the
Revolving Credit Agreement due and payable on the Termination Date under (and
as defined in) the Revolving Credit Agreement; (iii) income taxes paid by the
Borrower during the preceding four Fiscal Quarters, and (iv) cash dividends
made on Borrower’s Capital Stock during the preceding four Fiscal Quarters.


 


“Foreign
Subsidiary Credit Agreement” means the Term Credit Agreement dated as of
September 22, 2006 by and among Maunsell HK Holdings, Ltd., Faber Maunsell
Limited, W.E. Bassett & Partners Pty. Ltd., Maunsell Group Limited,
Maunsell Australia Pty. Ltd., the Lenders party thereto, Union Bank, as the
Administrative Agent, and BMO Capital Markets Financing, 


 


11

















 


Inc.,
as the Syndication Agent, as the same may be supplemented, amended, amended and
restated, or otherwise modified from time to time.


 


“Foreign
Lender” means any Lender that is organized under the Laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes.  For purposes of this definition, the United
States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.


 


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


 


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


 


“GAAP”
means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, applied consistently with past practices, subject to
changes in GAAP as contemplated by Section 1.03(b).


 


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


 


“Guarantee”
means, as to any Person,  any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation payable or
performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into for
the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in
part).  The amount of any Guarantee shall
be deemed to be an amount equal to the stated or determinable amount of the
related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as 


 


12

















 


determined
by the guaranteeing Person in good faith. 
The term “Guarantee” as a verb has a corresponding meaning.


 


“Guarantors” means, collectively, (a) as of
the Closing Date, all Subsidiaries
of the Borrower that are Significant Subsidiaries on the Closing Date and (b) as
if any date after the Closing Date, (i) all Subsidiaries of the Borrower that
were Significant Subsidiaries on the Closing Date and that remain Significant
Subsidiaries on such date after the Closing Date, and (ii) all Subsidiaries of
the Borrower that become Significant Subsidiaries after the Closing Date and
that become a party to the Guaranty in accordance with Section 6.12.


 


“Guaranty” means the Guaranty made by the
Guarantors in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit F.


 


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


 


“Hostile
Acquisition” means an Acquisition (a) of all or substantially all of the
Equity Interests of a Person through a tender offer or similar solicitation of
the owners of such Equity Interests which has not been approved (prior to the
consummation of such Acquisition) by the board of directors (or any other
applicable governing body) of such Person or by similar or other appropriate
action if such Person is not a corporation and (b) as to which, at the time of
consummation of such Acquisition, any such prior approval has been withdrawn.


 


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


 


(a)                                  all obligations of such
Person for borrowed money and all obligations of such Person evidenced by bonds,
debentures, notes, loan agreements or other similar instruments;


 


(b)                                 all direct or contingent
obligations of such Person arising under letters of credit (including standby
and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments (other than Performance Contingent Obligations);


 


(c)                                  net obligations of such
Person under any Swap Contract;


 


(d)                                 all obligations of such
Person to pay the deferred purchase price of property or services (other than
trade accounts payable in the ordinary course of business);


 


(e)                                  indebtedness (excluding
prepaid interest thereon) secured by a Lien on property owned or being
purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;


 


13

















 


(f)                                    Attributable Indebtedness;
and


 


(g)                                 all Guarantees of such
Person in respect of any of the foregoing (other than Performance Contingent
Obligations).


 


For
all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is
non-recourse to such Person (whether expressly, by operation of law or
otherwise).  The amount of any net
obligation under any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date. 
For all purposes hereof, with regard to the aggregate Series B Notes (as
defined in the Note Purchase Agreement) or any other Indebtedness issued at an
original issue discount, the aggregate obligations thereunder shall equal, at
any date of measurement, the accreted value thereof in accordance with
GAAP.  The amount of any capital lease or
Synthetic Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.  Notwithstanding the foregoing, Indebtedness
of the Borrower and its Subsidiaries shall not include (i) indebtedness of
partnerships or joint ventures of which the Borrower or any Subsidiary is a
general partner or member to the extent such indebtedness is non-recourse
(whether expressly, by operation of law or otherwise) to the Borrower or such
Subsidiary or its assets, (ii) an amount equal to the lesser of (A) the
principal amount of Indebtedness supported by letters of credit, and (B) the
face amount of such letters of credit and (iii) the liquidation preference of
any Preferred Stock.


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


“Indemnitees”
has the meaning specified in Section 10.04(b).


 


“Information”
has the meaning specified in Section 10.07.


 


“Interest
Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date;
provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and
the Maturity Date.


 


“Interest
Period” means, as to each Eurodollar Rate Loan, the period commencing on
the date such Eurodollar Rate Loan is disbursed or converted to or continued as
a Eurodollar Rate Loan (including any such Automatically Continued Loan) and
ending on the date one, two, three or six months thereafter, as selected by the
Borrower in its Loan Notice or Notice of Conversion/Continuation (or as
contemplated by the provisions of this Agreement relating to Automatically
Continued Loans); provided that:


 


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


 


14

















 


(b)                                 any Interest Period
pertaining to a Eurodollar 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 shall
extend beyond the Maturity Date.


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
capital stock or other securities of another Person, (b) a loan, advance or
capital contribution to, Guarantee or assumption of debt of, or purchase or
other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such
other Person and any arrangement pursuant to which the investor Guarantees
Indebtedness of such other Person, or (c) the purchase or other acquisition (in
one transaction or a series of transactions) of assets of another Person that
constitute a business unit.  For purposes
of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in
the value of such Investment.


 


“IRS”
means the United States Internal Revenue Service.


 


“Joint
Venture” means a joint venture, partnership or similar arrangement formed
for the purpose of performing a single project or series of related projects,
whether in corporate, partnership or other legal form; provided that, in
no event shall a Subsidiary be considered a “Joint Venture.”


 


“Laws”
means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.


 


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


 


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


 


“Letter
of Credit” means a letter of credit issued by any Issuing Lender under (and
as defined in) the Revolving Credit Agreement.


 


“Leverage
Ratio” means, at any date of determination thereof, the ratio of (a) Consolidated
Funded Debt plus, without duplication, all unreimbursed drawings under any
Letter of Credit existing as of such date, to (b) Consolidated EBITDA for the
four Fiscal Quarters most recently ended for which financial statements are
available.


 


15
















 


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


 


“Loan”
means, individually, a Committed Loan or an Optional Loan, and “Loans”
means, collectively, the Committed Loans and the Optional Loans.


 


“Loan
Documents” means, collectively, this Agreement, each Note and the Guaranty.


 


“Loan
Notice” means a notice of request for the Committed Loans or for an
Optional Loan to be delivered by the Borrower to the Administrative Agent,
which shall be substantially in the form of Exhibit A.


 


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


 


“London
Banking Day” means any day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market.


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, properties, liabilities
(actual or contingent) or condition (financial or otherwise) of the Borrower
and its Subsidiaries taken as a whole; provided that a Material Adverse
Effect shall not include:  (i) conditions
(or changes therein) generally affecting participants in any engineering and
construction industry; (ii) changes in general economic or political conditions
in the United States, in any country in which the Borrower or its Subsidiaries
conducts business or in the global economy as a whole; (iii) any generally
applicable change in law or generally accepted accounting principles or
interpretation of any of the foregoing; and (iv) effects arising out of acts of
terrorism or war or the escalation or worsening thereof, weather conditions or
other force majeure events; (b) a material
impairment of the rights and remedies of the Administrative Agent or any Lender
under any Loan Document, or of the ability of any Loan Party to perform its
obligations under any Loan Document to which it is a party; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against any Loan Party of any Loan Document to which it is a party.


 


“Maturity
Date” means September 16, 2014; provided, however, that if
such date is not a Business Day, the Maturity Date shall be the immediately
preceding Business Day.


 


“Minority
Investment” means an Investment by the Borrower or any Subsidiary in the
Capital Stock of another Person (other than the Borrower or any Subsidiary)
whose primary business at such time is the same as that of the Borrower that
results in the direct ownership by the Borrower or a Subsidiary of less than
50% of the outstanding Equity Interests of such other Person, irrespective of
whether the board of directors (or other governing body) of such Person has
approved such Investment; provided,
that a “Minority Investment” shall not include (i) any Investments existing on
the Closing Date or set forth on Schedule 7.02, (ii) Investments in
Joint Ventures permitted pursuant to Section 7.02(b), (iii) Investments
in any securities received in satisfaction or partial satisfaction from
financially troubled account debtors or (iv) Investments made or deemed made as
a result of the receipt of non-cash consideration in connection with


 


16

















 


Dispositions
otherwise permitted hereunder.


 


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


 


“Multiple
Employer Plan” means a Plan which has two or more contributing sponsors
(including the Borrower or any ERISA Affiliate) at least two of whom are not
under common control, as such a plan is described in Section 4064 of ERISA.


 


“Net
Cash Proceeds” means, with respect to any Disposition, without duplication,
the sum of:


 


(a)                                  the cash and cash equivalent
proceeds received by or for the account of the Borrower or any of its
Subsidiaries attributable to such Disposition;


 


(b)                                 the amount of cash and cash
equivalents received by or for the account of the Borrower or any of its
Subsidiaries upon the sale, conversion, collection or other liquidation of any
Non-Cash Proceeds attributable to such Disposition (but only as and when so
received); and


 


(c)                                  the amount of cash and cash
equivalents in respect of any run-off of receivables less payments on
associated liabilities, in each case retained in connection with a Disposition
constituting a sale of all or substantially all of the other assets or a line
of business of the Person making the disposition (but only as and when so
received);


 


in
each case net of any amount required to be paid to any Person (other than the
Borrower or any Subsidiary) owning a beneficial interest in the stock or other
assets disposed of, any amount applied to the repayment of Indebtedness (other
than the Obligations) secured by a Lien permitted under Section 7.01 on
the asset disposed of, any income or transfer taxes paid or payable as a result
of such Disposition and professional fees and expenses, broker’s commissions
and other out-of-pocket costs of sale actually paid to any Person (other than
the Borrower or any Subsidiary) attributable to such Disposition.


 


“Non-Cash
Proceeds” means any notes, debt securities, other rights to payment, equity
securities and other consideration received from a Disposition, except cash and
cash equivalents.


 


“Note”
means a promissory note made by the Borrower in favor of a Lender evidencing
the Committed Loan made by such Lender, substantially in the form of Exhibit
B.


 


“Note
Purchase Agreement” means that certain Note Purchase Agreement, dated as of
June 28, 2010, pursuant to which the Borrower issued $175,000,000 of 5.43%
Senior Notes, Series A, due July 7, 2020 and $125,000,000 1.00% Senior Discount
Notes, Series B, due July 7, 2022, as the same may be supplemented, amended,
amended and restated, or otherwise modified from time to time.


 


17

















 


“Notice
of Conversion/Continuation” means a notice of continuation of Eurodollar
Rate Loans or of conversion of Loans (or portions thereof) from one Type to the
other, pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit C.


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document or otherwise with
respect to any Loan, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the
commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in
such (or a portion of the Loans) proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding.


 


“Optional
Loans” has the meaning specified for such term in Section 2.16 (a).


 


“Optional
Loan Amortization Start Date” has the meaning specified for such term in Section
2.16 (f).


 


“Optional
Loan Effective Date” has the meaning specified for such term in Section 2.16
(d).


 


“Optional
Loan Principal Payment Date” has the meaning specified for such term in Section
2.16 (f).


 


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


 


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


 


“Outstanding
Amount” means, on any date, the aggregate outstanding principal amount of
the Loans after giving effect to any prepayments or repayments thereof, as the
case may be, occurring on such date.


 


“Participant”
has the meaning specified in Section 10.06(d).


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


18

















 


“Pension
Act” means the Pension Protection Act of 2006.


 


“Pension
Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension
Plans and set forth in, with respect to plan years ending prior to the
effective date of the Pension Act, Section 412 of the Code and Section 302 of
ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412,
430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.


 


“Pension
Plan” means any employee pension benefit plan (including a Multiple
Employer Plan or a Multiemployer Plan) that is maintained or is contributed to
by the Borrower and any ERISA Affiliate and is either covered by Title IV of
ERISA or is subject to the minimum funding standards under Section 412 of the
Code.


 


“Performance
Contingent Obligations” means any bid, performance or similar project
related bonds, parent company guarantees or standby Letters of Credit used
directly or indirectly to cover bid, performance, advance and retention
obligations, including, without limitation, any bid, performance or similar
project related bonds, performance guarantees or Letters of Credit issued in
favor of sureties who in connection therewith cover bid, performance, advance
and retention obligations.


 


“Permitted
Acquisition” means any Acquisition by the Borrower or any of its
Subsidiaries, provided  that: (i) such Investment is not a Hostile
Acquisition; and (ii) after giving pro forma effect to the consummation of such
Acquisition, no Default or Event of Default shall have occurred and be
continuing.


 


“Permitted
Liens” has the meaning specified in Section 7.01.


 


“Permitted
Minority Investment” means a Minority Investment, provided
that the aggregate consideration for such Minority Investment and for all other
Minority Investments made in any Fiscal Year shall not exceed: (a) for the
Fiscal Year 2011, $250,000,000; (b) for the Fiscal Year 2012, the sum  of
(i) 10% of the Borrower’s Consolidated Net Worth as of the last day of the
Fiscal Year 2011 and (ii) the amount, if any, but not to exceed $100,000,000,
by which the aggregate Minority Investments for the Fiscal Year 2011 was less
than $250,000,000; and (c) for each Fiscal Year after the Fiscal Year 2012, the
sum  of (i) 10% of the Borrower’s Consolidated Net Worth as of the
last day of the immediately preceding Fiscal Year and (ii) 50% of the amount,
if any, by which the aggregate Minority Investments for the immediately
preceding Fiscal Year was less than the applicable foregoing limit for such
Fiscal Year.


 


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


 


“Plans”
means the AECOM Technology Corporation Retirement Savings Plan, and the
associated trust, the AECOM Stock Purchase Plan, and any corresponding plan
outside the U.S. and any associated trust, including, without limitation, the
plans listed in Schedule 6.10, as such plans and trusts may from time to
time be supplemented, modified or amended, but including any successor or
replacement plan.


 


“Platform”
has the meaning specified in Section 6.02.


 


19

















 


“Preferred
Stock” means any class of preferred stock of the Borrower.


 


“Priority
Indebtedness” means (a) any Indebtedness of the Borrower secured by a Lien
permitted solely under Section 7.01(j) and (b) any Indebtedness of a
Subsidiary; provided that there shall be excluded
from any calculation of Priority Indebtedness the Indebtedness of any
Subsidiary evidenced by (i) a Guarantee of the Indebtedness of the Borrower
owing pursuant to the Revolving Credit Agreement, the Note Purchase Agreement
or this Agreement and (ii) a Guarantee delivered by a Guarantor of other
Indebtedness of the Borrower.


 


“Public
Lender” has the meaning specified in Section 6.02.


 


“Register”
has the meaning specified in Section 10.06(c).


 


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


 


“Reportable
Event” means any of the events set forth in Section 4043(c) of ERISA, other
than events for which the 30 day notice period has been waived.


 


“Required
Lenders” means, as of any date of determination, at least two Lenders holding more than 50% of the Total Outstandings; provided that the
portion of the Total Outstandings held, or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required
Lenders.


 


“Responsible
Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of a Loan Party and
solely for purposes of the delivery of incumbency certificates pursuant to Section
4.01, the secretary or any assistant secretary of a Loan Party.  Any document delivered hereunder that is
signed by a Responsible Officer of a Loan Party shall be conclusively presumed
to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.


 


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


 


“Revolving
Credit Agreement” means the Credit Agreement dated as of August 31, 2007
among the Borrower, the Subsidiary Borrowers identified therein, Bank of
America, as Administrative Agent, the other Agents identified therein, and the
Lender party thereto, as the same has been or may hereafter be modified,
supplemented or amended from time to time.


 


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


 


20

















 


“Significant
Subsidiary” means any direct or indirect domestic Subsidiary of the
Borrower that individually, without duplication or consolidation with any other
Subsidiary, (a) has assets with a book value that total 5% or more of the book
value of all assets of the Borrower and its Subsidiaries on a consolidated
basis, or (b) has the net sum of items (a) through (g) of the definition of
Consolidated EBITDA that is 5% or more of Consolidated EBITDA in any fiscal
year.  Notwithstanding the foregoing, any
Significant Subsidiary whose assets or earnings (the term “earnings” defined as
the net sum of items (a) through (g) of the definition of the Borrower’s
Consolidated EBITDA) fall below the foregoing 5% test at any Fiscal Year end
shall not thereafter be considered a Significant Subsidiary hereunder until
such time as it does meet such test.


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having such
power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by such
Person.  Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of the Borrower.


 


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


 


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


 


“Synthetic
Lease Obligation” means the monetary obligation of a Person under a
so-called synthetic, off-balance sheet or tax retention lease.


 


21

















 


“Tax
Arrangement” means any tax arrangement or structure among the Borrower and
its Subsidiaries that:


 


(a)                                  is entered into
or created pursuant to advice from any of Ernst & Young, KPMG,
PricewaterhouseCoopers, Deloitte Touche Tohmatsu, their respective Affiliates
or any other nationally recognized tax advisory firm and a copy of such advice
is either delivered or made available to the Administrative Agent and the
Lenders;


 


(b)                                 requires that
one or more Subsidiaries (but not the Borrower) directly incur Indebtedness;


 


(c)                                  is intended to
enable the Borrower and/or its Subsidiaries to realize tax savings in
connection with (i) repatriation of cash at lower tax rates than would be the
case absent such tax arrangement or structure or (ii) qualifying for tax
credits, tax deductions or other tax incentives greater than the cost of
structuring and implementing such tax arrangement or structure, provided that, for the avoidance of doubt, any interest
deduction on such Indebtedness shall not be considered as a tax credit, tax
deduction or other tax incentive; and


 


(d)                                 complies with
applicable laws and regulations.


 


“Tax
Arrangement Priority Indebtedness” means Priority Indebtedness incurred by
a Subsidiary of the Borrower pursuant to a Tax Arrangement.


 


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


 


“Total
Outstandings” means the aggregate Outstanding Amount of all Loans.


 


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


 


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


 


“Unreimbursed
Amount” has the meaning specified in Section 2.04(c)(i).


 


“Wholly-Owned
Subsidiary” means any Subsidiary for which all of the voting shares of
Equity Interests or other ownership interests (except directors’ qualifying
shares) are at the time directly or indirectly owned by the Borrower or one or
more of its other Wholly-Owned Subsidiaries.


 


1.02.                     Other Interpretive Provisions.  With reference to this Agreement and each
other Loan Document, unless otherwise specified herein or in such other Loan
Document:


 


(a)                                  The definitions
of terms herein shall apply equally to the singular and plural forms of the
terms defined.  Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.  The words “include,”
“includes” and “including” shall be deemed to be followed by the
phrase “without limitation.”  The word 


 


22

















 


“will” shall be
construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (iii) the words “hereto,” “herein,”
“hereof” and “hereunder,” and words of similar import when used
in any Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references in a
Loan Document to Articles, Sections, Exhibits and Schedules shall be construed
to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending,
replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words “asset”
and “property” shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.


 


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


 


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


 


1.03.                     Accounting
Terms.


 


(a)                                  Generally.  All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP, as in effect from time to time, except as
otherwise specifically prescribed herein.


 


(b)                                 Changes in GAAP.  If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any
Loan Document, and either the Borrower or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Borrower shall negotiate
in good faith as expeditiously as possible but without any deadline to amend
such ratio or requirement to preserve the original intent thereof in light of
such change in GAAP (subject to the approval of the Required Lenders); provided
that, until the parties reach agreement on such amendment, (i) such
ratio or requirement shall continue to be computed (and the Borrower’s
compliance with such ratio or requirement shall continue to be determined) in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a 


 


23

















 


reconciliation between
calculations of such ratio or requirement made before and after giving effect
to such change in GAAP.


 


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


 


1.05.                     Times of Day.  Unless
otherwise specified, all references herein to times of day shall be references
to Pacific time (daylight or standard, as applicable).


 


ARTICLE II.

THE LOANS


 


2.01.                     Committed
Term Loans.


 


(a)                                  Subject to the
terms and conditions set forth herein, each Lender agrees to make a term loan
to the Borrower on the Closing Date in a principal amount equal to the amount
of such Lender’s Commitment as a Eurodollar Rate Loan with an Interest Period
as set forth in the Loan Notice delivered three Business Days prior to the
Closing Date.  Any principal amount of
the term loans made by the Lenders to the Borrower under this Section 2.01(a)
that is repaid or prepaid may not be reborrowed.


 


(b)                                 The Borrowing
under this Section 2.01 on the Closing Date shall be made by the Lenders
ratably in accordance with their respective Commitments.  The failure of any Lender to make the
Committed Loan required to be made by it on the Closing Date pursuant to Section
2.01(a) shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments of the Lenders are several, and no Lender shall be
responsible for any other Lender’s failure to make its Committed Loan as
required.


 


(c)                                  All Commitments
shall terminate on the earlier to occur of (a) the Closing Date and (b) September
30, 2010.


 


2.02.                     Conversions
and Continuations of Loans.


 


(a)                                  Each conversion
of Loans from one Type to the other and each continuation of Eurodollar Rate
Loans (other than Automatically Continued Loans) shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent, which may be given
by telephone.  Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. three Business
Days prior to the requested date of any conversion to or continuation of
Eurodollar Rate Loans (other than Automatically Continued Loans) or of any
conversion of Eurodollar Rate Loans to Base Rate Loans.  Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery
to the Administrative Agent of a written Notice of Conversion/Continuation,
appropriately completed and signed by a Responsible Officer of the
Borrower.  Each conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of
$10,000,000 or a whole multiple of $5,000,000 in excess thereof.  Except as provided in Sections 2.04(c)
and 2.05(c), each conversion to Base 


 


24
















 


Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof.  Each Notice of
Conversion/Continuation (whether telephonic or written) shall specify (i) whether
the Borrower is requesting a conversion of Loans from one Type to the other or
a continuation of Eurodollar Rate Loans, (ii) the requested date of the
conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Loans to be converted or continued, (iv) the Type
of Loans to which existing Loans are to be converted, and (v) if applicable,
the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of
Loan in a Notice of Conversion/Continuation or if the Borrower fails to give a
timely notice requesting a conversion or continuation, then the applicable
Loans automatically shall be continued as Eurodollar Rate Loans with an
Interest Period of three months (“Automatically Continued Loans”).  All Automatically Continued Loans shall be
effective as of the last day of the respective Interest Periods then in effect
for such Loans.  If the Borrower requests
a conversion to or continuation of Eurodollar Rate Committed Loans in any such
Notice of Conversion/Continuation, but fails to specify an Interest Period, it
will be deemed to have specified an Interest Period of three months.


 


(b)                                 Following
receipt of a Notice of Conversion/Continuation, if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative
Agent shall notify each Lender of the details of any Automatically Converted
Loans.


 


(c)                                  Except as
otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan.  During the existence of a Default, no Loans
may be converted to or continued as Eurodollar Rate Loans (whether pursuant to
a Notice of Conversion/Continuation or as Automatically Continued Loans)
without the consent of the Required Lenders.


 


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


 


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


 


2.03.                     [Reserved].


 


2.04.                     [Reserved].


 


2.05.                     [Reserved].


 


2.06.                     Prepayments.


 


The
Borrower may, upon notice to the Administrative Agent, at any time or from time
to time voluntarily prepay the Committed Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 11:00 


 


25

















 


a.m.
(A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment
of Eurodollar Rate Loans shall be in a principal amount of $10,000,000 or a
whole multiple of $5,000,000 in excess thereof; and (iii) any prepayment of
Base Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof or, in each case, if less, the entire
principal amount thereof then outstanding. 
Each such notice shall specify the date and amount of such prepayment
and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be
prepaid, the Interest Period(s) of such Loans. 
The Administrative Agent will promptly notify each Lender of its receipt
of each such notice, and of the amount of such Lender’s Applicable Percentage
of such prepayment.  If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein.  Any prepayment of a Eurodollar
Rate Loan shall be accompanied by all accrued interest on the amount prepaid,
together with any additional amounts required pursuant to Section 3.05.  Subject to Section 2.18, each such
prepayment shall be allocated to the Committed Loans of the Lenders in
accordance with the respective Applicable Percentages of the Lenders and
applied to the principal payments due pursuant to Section 2.08(a) in
order of maturity thereof.


 


2.07.                     [Reserved].


 


2.08.                     Repayment
of Committed Loans.


 


(a)                                  The Borrower
shall repay the principal balance of the Committed Loans in quarterly
installments, each in the amount equal to 5% of the aggregate original
principal amount of the Committed Loans, commencing on September 30, 2012 and
continuing on the last day of each subsequent Fiscal Quarter, through and
including June 30, 2014.


 


(b)                                 The Borrower
shall repay the remaining outstanding principal balance of the Committed Loans
on the Maturity Date.


 


2.09.                     Interest.


 


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


 


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


 


(ii)                                  If any amount
(other than principal of any Loan) payable by the Borrower under any Loan
Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the request
of the Required Lenders, such amount shall thereafter bear interest at a
fluctuating 


 


26

















 


interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.


 


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


 


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


 


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


 


2.10.                     Fees.


 


(a)                                  The Borrower
shall pay to the Administrative Agent for the Administrative Agent’s own
account an annual agency fee and shall pay an arrangement fee to BAS, in each
case in the amount and at the times set forth in a separate fee letter
agreement among the Borrower, the Administrative Agent and BAS.


 


(b)                                 The Borrower
shall pay to the Lenders such fees as shall have been separately agreed upon in
writing in the amounts and at the times so specified.  Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.


 


2.11.                     Computation
of Interest and Fees; Retroactive Adjustments of Applicable Rate.


 


(a)                                  All
computations of interest for Base Rate Loans (including Base Rate Loans
determined by reference to the Eurodollar Rate) shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on
the basis of a 365-day year).  Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day
on which it is made shall, subject to Section 2.13(a), bear interest for
one day.  Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.


 


(b)                                 If at any time
within one year of any date of determination of the Leverage Ratio for purposes
of calculating the Applicable Rate, as a result of any restatement of or other
adjustment to the financial statements of the Borrower or for any other reason,
(i) the Leverage Ratio as calculated by the Borrower as of any applicable date
were inaccurate and (ii) a proper calculation of the Leverage Ratio would have
resulted in higher pricing for such period, the 


 


27

















 


Borrower shall immediately
and retroactively be obligated to pay to the Administrative Agent for the
account of the applicable Lenders promptly on demand by the Administrative
Agent (or, after the occurrence of an actual or deemed entry of an order for
relief with respect to the Borrower under the Bankruptcy Code of the United
States, automatically and without further action by the Administrative Agent or
any Lender), an amount equal to the excess of the amount of interest and fees
that should have been paid for such period over the amount of interest and fees
actually paid for such period.  This
paragraph shall not limit the rights of the Administrative Agent or any Lender
under Article VIII.  The Borrower’s
obligations under this paragraph shall survive for a period of one year after the
later of the termination of the Aggregate Commitments and the repayment of all
other Obligations hereunder.


 


2.12.                     Evidence
of Debt.


 


The
Committed Loan and any Optional Loan made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business.  The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the respective 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 shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Obligations. 
In the event of any conflict between the accounts and records maintained
by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error. 
Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Committed Loan
in addition to such accounts or records. 
Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Committed Loan and
payments with respect thereto.


 


2.13.                     Payments
Generally; Administrative Agent’s Clawback.


 


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


 


(b)                                 Payments by
Borrower; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which 


 


28

















 


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


 


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


 


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


 


(d)                                 Funding Source.  Nothing herein shall be deemed to obligate
any Lender to obtain the funds for its Committed Loan to be made on the Closing
Date in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for such Committed Loan in
any particular place or manner.


 


2.14.                     Sharing of Payments by Lenders.  If any Lender shall, by exercising any right
of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on the Committed Loan made by it resulting in such
Lender’s receiving payment of a proportion of the aggregate amount of the
Committed Loans and accrued interest thereon greater than its pro rata share
thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase (for
cash at face value) participations in the Committed Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them, provided that:


 


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


 


(ii)                                  the provisions
of this Section shall not be construed to apply to any payment made by or on
behalf of the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence
of a Defaulting Lender), or (y) any payment obtained by a Lender as 


 


29

















 


consideration for the
assignment of or sale of a participation in any of its Committed Loan or to any
assignee or Participant, other than an assignment to the Borrower or any
Affiliate  thereof (as to which the provisions of
this Section shall apply).


 


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


 


2.15.                     [Reserved].


 


2.16.                     Optional
Loans.


 


(a)                                  Request for
Optional Loans.  Provided
there exists no Default, upon notice to the Administrative Agent (which shall
promptly notify the Lenders), on the Closing Date or from time to time
thereafter, the Borrower may request additional term loans from the Lenders (“Optional
Loans”) in an aggregate amount (for all such requests) not exceeding
$100,000,000; provided that (i) any such request for Optional Loans
shall be in a minimum amount of $10,000,000, and (ii) the Borrower may make a
maximum of three (3) such requests for Optional Loans during the term of this
Agreement.  At the time of sending such
notice, the Borrower (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which
shall in no event be less than ten (10) Business Days from the date of delivery
of such notice to the Lenders).


 


(b)                                 Lender
Elections to Fund Optional Loans.  Each Lender shall notify the Administrative
Agent within such time period whether or not it agrees to fund a portion of any
requested Optional Loan and, if so, whether by an amount equal to, greater
than, or less than its Applicable Percentage of such requested Optional
Loan.  Any Lender not responding within
such time period shall be deemed to have declined to fund any portion of such
requested Optional Loan.


 


(c)                                  Notification by
Administrative Agent; Additional Lenders.  The Administrative Agent shall notify the
Borrower and each Lender of the Lenders’ responses to each request made
hereunder.  To
achieve the full amount of a requested Optional Loan and subject to the
approval of the Administrative Agent (which approval shall not be unreasonably
withheld), the Borrower may also invite additional Eligible Assignees to become
Lenders pursuant to a joinder agreement in form and substance satisfactory to
the Administrative Agent and its counsel.


 


(d)                                 Effective Date
and Allocations.  If any
Optional Loan is made in accordance with this Section, the Administrative Agent
and the Borrower shall determine the effective date (the “Optional Loan
Effective Date”) and the final allocation of such Optional Loan.  The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such Optional
Loan and the Optional Loan Effective Date.


 


(e)                                  Conditions to
Optional Loans.  As a
condition precedent to any Optional Loan, the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party 


 


30

















 


dated as of the Optional
Loan Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (x) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such Optional
Loan, and (y) in the case of the Borrower, certifying that, before and after
giving effect to such Optional Loan, (A) the representations and warranties
contained in Article V and the other Loan Documents are true and correct
in all material respects on and as of the Optional Loan Effective Date, except (i)
for representations and warranties which are qualified by the inclusion of a
materiality standard, which representations and warranties shall be true and
correct in all respects, (ii) to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
in all material respects as of such earlier date, and (iii) that for purposes
of this Section 2.16, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be deemed to refer to the
most recent statements furnished pursuant to clauses (a) and (b), respectively,
of Section 6.01, and (B) no Default exists.


 


(f)                                    Amortization.  The principal balance of each Optional Loan
made pursuant to this Section 2.16 shall be payable in quarterly
installments.  Such quarterly principal
installments shall: commence on the later of (i) September 30, 2012 or
(ii) the last day of the Fiscal Quarter of the Borrower immediately following
the date of funding of such Optional Loan (as applicable, the “Optional Loan
Amortization Start Date”); continue on the last day of each Fiscal
Quarter ending thereafter; and conclude on the last day of the Fiscal
Quarter of the Borrower ending closest to June 30, 2014 (each such payment date
hereinafter being referred to as an “Optional Loan Principal Payment Date”).  Each quarterly principal installment shall be
in an amount equal to the following quotient:


 


The
original principal amount of the applicable Optional Loan multiplied
by 40%


 


n


 


For
the purpose of the preceding sentence, “n” shall mean
the total number of Optional Loan Principal Payment Dates occurring during the
period commencing on the Optional Loan Amortization Start Date and ending on
the last day of the Fiscal Quarter of the Borrower ending closest to June 30,
2014.  The Borrower shall repay the
remaining outstanding principal balance of each Optional Loan on the Maturity
Date.


 


(g)                                 Voluntary
Prepayments.  Voluntary
prepayments of Optional Loans shall be made in the same manner and subject to
the same terms and conditions as voluntary prepayments of Committed Loans, as
set forth in Section 2.06.  The
Borrower may prepay all or any portion of either the Committed Loans or the
Optional Loans at any time.


 


(h)                                 Conflicting
Provisions.  This Section
shall supersede any provisions in Section 2.14 or 10.01 to the
contrary.


 


2.17.                     [Reserved].


 


2.18.                     [Reserved].


 


31

















 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01.                     Taxes.


 


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


 


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


 


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


 


(c)                                  Tax
Indemnifications.  (i) Without
limiting the provisions of subsection (a) or (b) above, the Borrower shall, and
does hereby, indemnify the Administrative Agent and each Lender, and shall make
payment in respect thereof within 10 days after demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) paid by the Administrative Agent or such Lender, as the case may
be, and any penalties, interest and reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority.  A certificate as to the
amount of any such payment or liability delivered to the Borrower by a Lender
(with a copy to the Administrative Agent), or by the Administrative Agent on
its own behalf or on behalf of a Lender, shall be conclusive absent manifest
error.


 


(ii)                                  Without
limiting the provisions of subsection (a) or (b) above, each Lender shall, and
does hereby, indemnify the Borrower and the Administrative Agent, 


 


32

















 


and shall make payment in
respect thereof within 10 days after demand therefor, against any and all Taxes
and any and all related losses, claims, liabilities, penalties, interest and
expenses (including the fees, charges and disbursements of any counsel for the
Borrower or  the Administrative
Agent) incurred by or asserted against the Borrower or the Administrative Agent
by any Governmental Authority as a result of the failure by such Lender to
deliver, or as a result of the inaccuracy or incompleteness of, any
documentation required to be delivered by such Lender to the Borrower or the
Administrative Agent pursuant to subsection (e).  Each Lender hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time owing
to such Lender under this Agreement or any other Loan Document against any
amount due to the Administrative Agent under this clause (ii).  The agreements in this clause (ii) shall
survive the resignation and/or replacement of the Administrative Agent, any
assignment of rights by, or the replacement of, a Lender, the termination of
the Aggregate Commitments and the repayment, satisfaction or discharge of all
other Obligations.


 


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


 


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


 


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


 


(A)                              any Lender that
is a “United States person” within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Borrower and the Administrative Agent executed
originals of Internal Revenue Service Form W-9 or such other documentation or
information prescribed by applicable Laws or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting requirements;
and


 


33

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(f)                                    Treatment of Certain
Refunds.  Unless required by applicable
Laws, at no time shall the Administrative Agent have any obligation to file for
or otherwise pursue on behalf of a Lender, or have any obligation to pay to any
Lender, any refund of Taxes withheld or 


 


34

















 


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


 


3.02.                     Illegality.  If any
Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Loans whose interest is determined by
reference to the Eurodollar Rate, or to determine or charge interest rates
based upon the Eurodollar Rate, or any Governmental Authority has imposed
material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, Dollars in the London interbank market, then, on notice
thereof by such Lender to the Borrower through the Administrative Agent, (i) any
obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if
such notice asserts the illegality of such Lender making or maintaining Base
Rate Loans the interest rate on which is determined by reference to the
Eurodollar Rate component of the Base Rate, the interest rate on which Base
Rate Loans of such Lender shall, if necessary to avoid such illegality, be
determined by the Administrative Agent without reference to the Eurodollar Rate
component of the Base Rate, in each case until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to
such determination no longer exist.  Upon
receipt of such notice, (x) the Borrower shall, upon demand from such Lender
(with a copy to the Administrative Agent), prepay or, if applicable, convert
all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate
on which Base Rate Loans of such Lender shall, if necessary to avoid such
illegality, be determined by the Administrative Agent without reference to the
Eurodollar Rate component of the Base Rate), either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice
asserts the illegality of such Lender determining or charging interest rates
based upon the Eurodollar Rate, the Administrative Agent shall during the
period of such suspension compute the Base Rate applicable to such Lender
without reference to the Eurodollar Rate component thereof until the
Administrative Agent is advised in writing by such Lender that it is no longer
illegal  for such Lender to determine or
charge interest rates based upon the Eurodollar Rate.  Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.


 


35
















 


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


 


3.04.                     Increased
Costs; Reserves on Eurodollar Rate Loans.


 


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


 


(i)                                     impose, modify
or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the
account of, or credit extended or participated in by, any Lender (except any
reserve requirement contemplated by Section
3.04(e)); or


 


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


 


(iii)                               impose on any
Lender or the London interbank market any other condition, cost or expense
(except for Indemnified Taxes or Other Taxes covered by Section 3.01 and
the imposition of, or any change in the rate of, any Excluded Tax payable by
such Lender) affecting this Agreement or Eurodollar Rate Loans made by such
Lender;


 


and
the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any Loan the interest on which is determined by
reference to the Eurodollar Rate (or of maintaining its obligation to make any
such Loan), or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender, the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.


 


36

















 


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


 


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


 


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


 


(e)                                  Reserves on
Eurodollar Rate Loans.  The
Borrower shall pay to each Lender, as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each
Eurodollar Rate Loan equal to the 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 manifest error), which shall be due
and payable on each date on which interest is payable on such Loan, provided
the Borrower shall have received at least 10 days’ prior notice (with a copy to
the Administrative Agent) of such additional interest from such Lender.  If a Lender fails to give notice 10 days
prior to the relevant Interest Payment Date, such additional interest shall be
due and payable 10 days from receipt of such notice.


 


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


 


37

















 


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


 


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


 


(c)                                  any assignment
of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section
10.13;


 


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


 


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


 


3.06.                     Mitigation
Obligations; Replacement of Lenders.


 


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


 


(b)                                 Replacement of
Lenders.  If any Lender requests
compensation under Section 3.04, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 3.01, the Borrower may replace
such Lender in accordance with Section 10.13.


 


3.07.                     Survival.  All of the
Borrower’s obligations under this Article III shall survive termination
of the Aggregate Commitments, repayment of all other Obligations hereunder, and
resignation of the Administrative Agent.


 


38

















 


ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


4.01.                     Conditions to Funding of Committed Loans.  The obligation of each Lender to fund its
Committed Loan to the Borrower on the Closing Date is subject to satisfaction
of the following conditions precedent:


 


(a)                                  The
Administrative Agent’s receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the Borrower on
behalf of each Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date)
and each in form and substance satisfactory to the Administrative Agent and
each of the Lenders:


 


(i)                                     executed
counterparts of this Agreement and the
Guaranty, sufficient in number for distribution to the Administrative
Agent, each Lender and the Borrower;


 


(ii)                                  a Note executed
by the Borrower in favor of each Lender requesting a Note;


 


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


 


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


 


(v)                                 favorable
opinions of counsel to the Loan Parties, addressed to the Administrative Agent
and each Lender, as to the matters set forth in Exhibit G and such other
matters concerning the Loan Parties and the Loan Documents as the Required
Lenders may reasonably request;


 


(vi)                              a certificate
of a Responsible Officer of the Borrower on behalf of each Loan Party either
(A) attaching copies of all consents, licenses and approvals required in
connection with the execution, delivery and performance by such Loan Party and
the validity against such Loan Party of the Loan Documents to which it is a
party (other than any such consents, licenses and approvals the absence of
which could not reasonably be expected to have a Material Adverse Effect), and
such consents, licenses and approvals shall be in full force and effect, or (B)
stating that no such consents, licenses or approvals are so required;


 


39

















 


(vii)                           a certificate
signed by a Responsible Officer of the Borrower certifying (A) that the
conditions specified in Sections 4.02(a) and (b) have been
satisfied, and (B) that there
has been no event or circumstance since June 30, 2010 that has had or could be
reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect; and


 


(viii)                        such other
assurances, certificates, documents, consents or opinions as the Administrative
Agent or the Required Lenders reasonably may require.


 


(b)                                 Any fees
required to be paid on or before the Closing Date under Section 2.10
hereof by the Borrower to the Lenders or the Administrative Agent shall have
been paid.


 


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


 


(d)                                 The Closing
Date shall have occurred on or before September 30, 2010.


 


Without
limiting the generality of the provisions of the last paragraph of Section 9.03,
for purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.


 


4.02.                     Conditions to all Loans.  The obligation of each Lender to fund its
Committed Loan to the Borrower on the Closing Date shall be subject to the
following conditions precedent, and each Optional Loan shall be subject to the
following conditions precedent, in addition to the conditions set forth in Section
2.16:


 


(a)                                  The
representations and warranties of the Borrower contained in Article V or
any other Loan Document, or which are contained in any document furnished at any
time under or in connection herewith or therewith, shall be true and correct in
all material respects on and as of the date of such Loan, except (i) for
representations and warranties which are qualified by the inclusion of a
materiality standard, which representations and warranties shall be true and
correct in all respects, (ii) to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be
true and correct as of such earlier date, and (iii) that for purposes of this Section
4.02, the representations and warranties contained in subsections (a) and
(b) of Section 5.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01.


 


(b)                                 No Default or
Event of Default under this Agreement, nor any “Default” or “Event of Default”
under (and as defined in) the Revolving Credit Agreement or the Foreign 


 


40

















 


Subsidiary Credit Agreement
shall exist, or would result from such proposed Loan or from the application of
the proceeds thereof.


 


(c)                                  The
Administrative Agent shall have received a Loan Notice for such Loan in
accordance with the requirements hereof and an indemnity letter in form and substance
reasonably satisfactory to the Administrative Agent.


 


Each
request for a Loan submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a)
and (b) have been satisfied on and as of the date of such Loan.


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


The
Borrower represents and warrants to the Administrative Agent and the Lenders
that:


 


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


 


5.02.                     Authorization; No Contravention.  The execution, delivery and performance by
each Loan Party of each Loan Document to which such Person is party, have been
duly authorized by all necessary corporate or other organizational action, and
do not and will not (a) contravene the terms of any of such Person’s
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to
be made under (i) any Contractual Obligation to which such Person is a party or
affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law, except, in the cases of clause (b) and (c) as
could not reasonably be expected to have a Material Adverse Effect.


 


5.03.                     Governmental Authorization; Other Consents.  No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document except as
could not reasonably be expected to have a Material Adverse Effect.


 


5.04.                     Binding Effect.  This
Agreement has been, and each other Loan Document, when delivered hereunder,
will have been, duly executed and delivered by each Loan Party that is party
thereto.  This Agreement constitutes, and
each other Loan Document when so delivered 


 


41

















 


will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms, except as may be limited by
equitable principles and by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to creditors’ rights generally.


 


5.05.                     Financial
Statements; No Material Adverse Effect.


 


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


 


(b)                                 The unaudited
consolidated balance sheet of the Borrower and its Subsidiaries dated June 30,
2010, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for the fiscal quarter ended on that date
(i) were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein, and (ii) fairly
present the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby,
subject, in the case of clauses (i) and (ii), to the absence of footnotes and
to normal year-end audit adjustments.


 


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


 


5.06.                     Litigation.  There are
no actions, suits, proceedings, claims or disputes pending or, to the actual
knowledge of the Borrower after due and diligent investigation, threatened in
writing, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Borrower or any of its Subsidiaries or against any
of their properties or revenues that (a) purport to affect the validity or
enforceability of this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (b) either individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.


 


5.07.                     No Default.  Neither any
Loan Party nor any Subsidiary thereof is in default under or with respect to
any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.  No Default has occurred and is continuing or
would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.


 


5.08.                     Ownership of Property; Liens.  Each of the Borrower and each Subsidiary has
good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.  


 


42

















 


The property of the Borrower and its Subsidiaries is
subject to no Liens, other than Liens permitted by Section 7.01.


 


5.09.                     Environmental Compliance.  The Borrower and its Subsidiaries conduct in
the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility
for violation of any Environmental Law on their respective businesses,
operations and properties, and as a result thereof the Borrower has reasonably
concluded that  such Environmental
Laws and claims could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.


 


5.10.                     Insurance.  The
properties of the Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies, in such amounts, with such deductibles
and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the
Borrower or the applicable Subsidiary operates; provided
that the foregoing provisions of this Section 5.10 shall not restrict
the Borrower’s ability to use either commercially reasonable self-insurance or
insurance through “captive” insurance Subsidiaries.


 


5.11.                     Taxes.  The
Borrower and its Subsidiaries have filed all Federal, state and other material
tax returns and reports required to be filed, and have paid all Federal, state
and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP and except as could not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect.  There is no tax assessment
proposed in writing against the Borrower or any Subsidiary that is not being
actively contested by the Company or such Subsidiary in good faith that would,
if made, have a Material Adverse Effect.


 


5.12.                     ERISA
Compliance.


 


(a)                                  Each Pension
Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code and other Federal or state laws.  Each Pension Plan that is intended to be a
qualified plan under Section 401(a) of the Code has received a favorable
determination letter from the Internal Revenue Service to the effect that the
form of such Pension Plan is qualified under Section 401(a) of the Code and the
trust related thereto has been determined by the Internal Revenue Service to be
exempt from federal income tax under Section 501(a) of the Code, or an
application for such a letter is currently being processed by the Internal
Revenue Service.  To the best knowledge
of the Borrower, nothing has occurred that would reasonably be expected to
prevent or cause the loss of such tax-qualified status.


 


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


 


43

















 


(c)                                  Except as would
not reasonably be expected to result in a Material Adverse Effect: (i) no ERISA
Event has occurred or is expected to occur; (ii) the Borrower and each ERISA
Affiliate has met all applicable requirements under the Pension Funding Rules in
respect of each Pension Plan, and no waiver of the minimum funding standards
under the Pension Funding Rules has been applied for or obtained; (iii) as of
the most recent valuation date for any Pension Plan, the funding target
attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or
higher; (iv) neither the Borrower nor any ERISA Affiliate has incurred any
liability to the PBGC other than for the payment of premiums, and there are no
premium payments which have become due that are unpaid; (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan
has been terminated by the plan administrator thereof nor by the PBGC, and no
event or circumstance has occurred or exists that could reasonably be expected
to cause the PBGC to institute proceedings under Title IV of ERISA to terminate
any Pension Plan.


 


5.13.                     Significant Subsidiaries; Equity Interests.  As of
the Closing Date, the Borrower has no Significant Subsidiaries other
than those specifically disclosed in Part (a) of Schedule 5.13, and all
of the outstanding Equity Interests in such Significant Subsidiaries have been
validly issued, are fully paid and nonassessable and are owned by a Loan Party
or a Subsidiary thereof in the amounts specified on Part (a) of Schedule 5.13
free and clear of all Liens.


 


5.14.                     Margin
Regulations; Investment Company Act.


 


(a)                                  The Borrower is
not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the purpose
of purchasing or carrying margin stock.


 


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


 


5.15.                     Disclosure.  To the
knowledge of the Borrower, none of the representations or warranties made by
the Borrower or any of its Subsidiaries in the Loan Documents as of the date
such representations and warranties are made or deemed made, and none of the
statements contained in each exhibit, report, statement or certificate
furnished by or on behalf of the Borrower or any of its Subsidiaries in connection
with the Loan Documents, 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, in light of the circumstances under which they are
made, not misleading as of the time when made or delivered; provided
that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.


 


5.16.                     Compliance with Laws.  Each Loan Party and each Subsidiary thereof
is in compliance in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its
properties, except in such instances in which 


 


44

















 


(a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.


 


5.17.                     Taxpayer Identification Number.  The Borrower’s true and correct U.S. taxpayer
identification number is set forth on Schedule 10.02.


 


5.18.                     Intellectual
Property; Licenses, Etc.  The
Borrower and its Subsidiaries own, or possess the right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are material to the operation of their respective businesses,
without conflict with the rights of any other Person, except as could not
reasonably be expected to have a Material Adverse Effect.  Neither the Borrower nor any of its Subsidiaries
has been charged or, to the knowledge of the Borrower, threatened to be charged
with any infringement of, nor has any of them infringed on, any unexpired
trademark, patent, patent registration, copyright, copyright registration or
other proprietary right of any person except where the effect thereof
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect or except as set forth on Schedule 5.18.


 


ARTICLE VI.

AFFIRMATIVE COVENANTS


 


So
long as any Loan or other Obligation (other than contingent indemnification
Obligations as to which no claim has been asserted) hereunder shall remain
unpaid or unsatisfied, the applicable Loan Party or Loan Parties shall perform
each and all of the following:


 


6.01.                     Financial
Statements.  The
Borrower shall deliver to the Administrative Agent, with sufficient copies for
each Lender:


 


(a)                                  as soon as
practicable and in any event within 90 days after the end of each Fiscal Year
of the Borrower (after giving effect to one automatic 15-day extension pursuant
to Rule 12b-25 of the Securities Exchange Act of 1934), consolidated balance
sheets of the Borrower and its Subsidiaries as of the end of such year and the
related consolidated statements of income, stockholders’ equity and cash flow
of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in
each case in comparative form the consolidated figures for the previous Fiscal
Year, all in reasonable detail and (i) in the case of such consolidated
financial statements, accompanied by a report thereon, unqualified as to scope,
accounting principles and going concern, of independent certified public
accountants of recognized national standing selected by the Borrower and
reasonably satisfactory to the Administrative Agent (with the understanding
that any of the so-called “Big Four” accounting firms shall be deemed to be
acceptable to the Administrative Agent), which report shall state that such
consolidated financial statements fairly present the financial position of the
Borrower and its Subsidiaries as at the date indicated and the results of their
operations and cash flow for the periods indicated in conformity with GAAP
(except as otherwise stated therein) and that the 


 


45

















 


examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards; and


 


(b)                                 as soon as practicable and in any event within 45 days after the end of
each of the first three Fiscal Quarters of each Fiscal Year of the Borrower
(after giving effect to one automatic 5-day extension pursuant to Rule 12b-25
of the Securities Exchange Act of 1934), a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the
related consolidated statements of income and cash flow of the Borrower and its
Subsidiaries for such Fiscal Quarter and the portion of the Borrower’s Fiscal
Year ended at the end of such Fiscal Quarter, setting forth in each case in
comparative form the consolidated figures for the corresponding periods of the
prior Fiscal Year, all in reasonable detail and certified by the Borrower’s
chief financial officer, treasurer, senior vice president, corporate finance,
or controller as fairly presenting the consolidated financial condition of the
Borrower and its Subsidiaries as at the dates indicated and the consolidated
results of their operations for the periods indicated, subject to normal
year-end adjustments and audit changes.


 


As
to any information contained in materials furnished pursuant to Section 6.02(e),
the Borrower shall not be separately required to furnish such information under
subsection (a) or (b) above, but, subject to Section 6.01(c) below, the
foregoing shall not be in derogation of the obligation of the Borrower to
furnish the information and materials described in subsection (a) and (b) above
at the times specified therein.


 


(c)                                  The Borrower
may satisfy its financial statement reporting requirements under Sections 6.01(a)
and (b) above if the Borrower complies with the financial statement
reporting requirements of the SEC, as such requirements may be amended from
time to time, and delivers the materials it files with the SEC to the
Administrative Agent pursuant to Section 6.02, notwithstanding that such
SEC reporting requirements may not require the filing of all of the information
required by Section 6.01(a) or (b).


 


6.02.                     Certificates; Other Information.  The Borrower shall deliver to the
Administrative Agent, with sufficient copies for each Lender:


 


(a)                                  together with
each delivery of financial statements of the Borrower and its Subsidiaries
pursuant to Sections 6.01(a) and (b) above, a Compliance
Certificate of the chief financial officer, treasurer, senior vice president,
corporate finance, or controller of the Borrower (i) stating that such officer
has reviewed the terms of the Loan Documents and has made, or has caused to be
made under his supervision, a review in reasonable detail of the transactions
and condition of the Borrower and its Subsidiaries during the accounting period
covered by such financial statements and that such review has not disclosed the
existence of any Default or Event of Default during or at the end of such
accounting period and that such officer does not have knowledge of the
existence, as at the date of such certificate, of any Default or Event of
Default, or, if he does have knowledge that a Default or an Event of Default
existed or exists, specifying the nature and period of existence thereof and
what action the Borrower has taken, is taking, or proposes to take with respect
thereto; and (ii) setting forth the calculations required to establish whether
the Borrower was in compliance with each of the financial covenants set forth in
Section 7.11 on the date of such financial statements;


 


46
















 


(b)                                 upon the
occurrence and during the continuance of an Event of Default, if requested by
the Administrative Agent, copies of all final reports or letters submitted to
the Borrower by its independent certified public accountants in connection with
each annual audit of the financial statements of the Borrower or its
Subsidiaries made by such accountants, including, without limitation, any “management
letter”;


 


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


 


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


 


Documents
required to be delivered pursuant to Section 6.01(a) or (b) or Section
6.02(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower’s
website on the Internet at the website address listed on Schedule 10.02;
(ii) on which such documents are posted on the Borrower’s behalf on an Internet
or intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent) or (iii) on which such report is filed electronically
with the SEC’s EDGAR system; provided that: (i) the Borrower shall
deliver paper copies of such documents to the Administrative Agent or any
Lender upon its request to the Borrower to deliver such paper copies until a
written request to cease delivering paper copies is given by the Administrative
Agent or such Lender and (ii) the Borrower shall give notice to the
Administrative Agent of the availability thereof on the SEC’s EDGAR
system.  The Administrative Agent shall
have no obligation to request the delivery of or to maintain paper copies of
the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Borrower with any such request by a Lender for
delivery, and each Lender shall be solely responsible for requesting delivery
to it or maintaining its copies of such documents.


 


The
Borrower hereby acknowledges that (a) the Administrative Agent and/or one of
the Arrangers will make available to the Lenders materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b) certain of the
Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Borrower or its
Affiliates, or the respective securities of any of the foregoing, and who may
be engaged in investment and other market-related activities with respect to
such Persons’ securities.  The Borrower
hereby agrees that (w) all Borrower Materials that are to be made available to
Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a
minimum, shall mean that the word “PUBLIC” 


 


47

















 


shall
appear prominently on the first page thereof; (x) by marking Borrower Materials
“PUBLIC,” the Borrower shall be deemed to have authorized the Administrative
Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to
the Borrower or its securities for purposes of United States Federal and state
securities laws (provided, however, that to the extent such
Borrower Materials constitute Information, they shall be treated as set forth
in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public
Side Information;” and (z) the Administrative Agent and the Arranger shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Side Information.”


 


6.03.                     Notices.  The
Borrower shall promptly notify the Administrative Agent and each Lender:


 


(a)                                 of the
occurrence of any Default or of any “Default” or “Event of Default” under (and
as defined in) either the Revolving Credit Agreement or the Foreign Subsidiary
Credit Agreement;


 


(b)                                 of any matter
that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including, in each case to the extent that such has resulted or
could reasonably be expected to result in a Material Adverse Effect, (i) breach
or non-performance of, or any default under, a Contractual Obligation of the
Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding
or suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws;


 


(c)                                  of the
occurrence of any ERISA Event; and


 


(d)                                 of any material
change in accounting policies or financial reporting practices by the Borrower
or any Subsidiary.


 


Each
notice pursuant to this Section 6.03 shall be accompanied by a statement
of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. 
Each notice pursuant to Section 6.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.


 


6.04.                     Payment of Obligations.  Each Loan Party shall pay and discharge as
the same shall become due and payable, all its obligations and liabilities,
including (a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets the failure of which to pay could
reasonably be expected to result in a Material Adverse Effect, unless the same
are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained by
the Borrower or such Subsidiary; (b) all lawful claims which, if unpaid, would
by law become a Lien upon its property (other than a Permitted Lien), except as
could not reasonably be expected to have a Material 


 


48

















 


Adverse Effect; and (c) all Indebtedness, as and
when due and payable (but subject to any subordination provisions contained in
any instrument or agreement evidencing such Indebtedness), except as could not
reasonably be expected to have a Material Adverse Effect.


 


6.05.                     Preservation of Existence, Etc.  Each Loan Party shall (a) preserve, renew and
maintain in full force and effect its legal existence and good standing under
the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 7.04 or 7.05; (b) take all reasonable action
to maintain all rights, privileges, permits, licenses and franchises necessary
or desirable in the normal conduct of its business, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could reasonably
be expected to have a Material Adverse Effect; provided, however,
that the existence (corporate or otherwise) of any Subsidiary may be terminated
if such termination is determined by the Borrower to be in its best interest
and is not materially disadvantageous to the Lenders.


 


6.06.                     Maintenance of Properties.  Each Loan Party shall (a) maintain, preserve
and protect all of its material properties and equipment necessary in the
operation of its business in good working order and condition, ordinary wear
and tear excepted; and (b) make all necessary repairs thereto and renewals and
replacements thereof except, in the case of clauses (a) and (b), where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.


 


6.07.                     Maintenance of Insurance.  Each Loan Party shall maintain with
financially sound and reputable insurance companies, insurance with respect to
its properties and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar business, of such
types and in such amounts as are customarily carried under similar
circumstances by such other Persons; provided, that the foregoing
provisions of this Section 6.07 shall not restrict the applicable Loan
Party’s ability to (i) self insure in commercially reasonable amounts or (ii) use
commercially reasonable self-insurance through “captive” insurance
Subsidiaries.


 


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


 


6.09.                     Books and Records.  Each
Loan Party shall maintain adequate books, records and accounts as may be
required or necessary to permit the preparation of consolidated financial
statements in accordance with sound business practices and GAAP or the
equivalent international standards.


 


6.10.                     Inspection Rights.  Each
Loan Party shall permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, 


 


49

















 


and independent public accountants, all at the expense of the Borrower and at
such reasonable times during normal business hours and as often as may be
reasonably requested, upon reasonable advance notice to the Borrower; provided,
however, that when an Event of Default exists the Administrative Agent
or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at
reasonable times during normal business hours and without advance notice.


 


6.11.                     Use of Proceeds.  The
Borrower shall use the proceeds of the Loans for (i) working capital and
Capital Expenditures, (ii) Permitted Acquisitions and Investments permitted
hereunder and (iii) general corporate purposes not in contravention of any Law
or of any Loan Document.


 


6.12.                     Additional
Guarantors.  Upon
delivery of the annual financial statements for the Fiscal Year ending
September 30, 2010 and upon delivery of the annual financial statements for
each subsequent Fiscal Year ending thereafter as required under Section 6.01(a),
the Borrower shall cause any new or existing subsidiary of the Borrower which
is a Significant Subsidiary as of the end of such Fiscal Year and which is not
already a Guarantor to (a) become a Guarantor by executing and delivering to
the Administrative Agent a counterpart of the Guaranty or such other document
as the Administrative Agent shall deem appropriate for such purpose, and (b)  upon the request of the Administrative Agent,
deliver to the Administrative Agent documents of the types referred to in
clauses (iii) and (iv) of Section 4.01(a) and favorable opinions of
in-house counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation
referred to in clause (a)), all in form, content and scope reasonably
satisfactory to the Administrative Agent. 
Any Guarantor that is no longer a Significant Subsidiary as of the end
of such Fiscal Year shall be, notwithstanding any other provision in the
Guaranty to the contrary, automatically released from the Guaranty.  Upon release of any Guarantor pursuant to the
preceding clause (ii), the Administrative Agent shall execute such other
documentation as is reasonably requested by the Borrower to evidence such
release.


 


ARTICLE VII.

NEGATIVE COVENANTS


 


So
long as any Loan or other Obligation (other than contingent indemnification
Obligations as to which no claim has been asserted) hereunder shall remain
unpaid or unsatisfied, the Borrower shall not, nor shall it permit any
Subsidiary to (except as otherwise set forth in Sections 7.04 and 7.06),
directly or indirectly:


 


7.01.                     Liens.  Create,
incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than the following
(each a “Permitted Lien”):


 


(a)                                 Customary
Permitted Liens;


 


(b)                                 Liens pursuant
to any Loan Document;


 


(c)                                  Liens existing
on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof;


 


50

















 


(d)                                 any attachment
or judgment Lien not otherwise constituting an Event of Default under Section
8.01(h) in existence less than sixty (60) days after the entry thereof or
with respect to which (i) execution has been stayed, (ii) payment is covered in
full by insurance, or (iii) the Borrower or any of its Subsidiaries shall in
good faith be prosecuting an appeal or proceedings for review and shall have
set aside on its books such reserves as may be required by GAAP with respect to
such judgment or award;


 


(e)                                  Liens existing
on property or assets of any Person at the time such Person becomes a
Subsidiary or such property or assets are acquired, but only, in any such case,
(i) if such Lien was not created in contemplation of such Person becoming a
Subsidiary or such property or assets being acquired, and (ii) so long as such
Lien does not encumber any assets other than the property subject to such Lien
at the time such Person becomes a Subsidiary or such property or assets are
acquired;


 


(f)                                   Liens on assets
securing Indebtedness permitted to be incurred or assumed pursuant to Section
7.03(e), including any interest or title of a lessor under any Capitalized
Lease, provided that (i) any such Lien does not encumber any property
other than assets constructed or acquired with the proceeds of such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost
of the property being acquired on the date of acquisition;


 


(g)                                  Leases,
subleases, licenses and sublicenses granted in the ordinary course of business,
which could not reasonably be expected to have a Material Adverse Effect;


 


(h)                                 any Lien
constituting a renewal, extension or replacement of any Lien permitted by
clauses (c), (f) or (g) of this Section 7.01, but only, in the case of
each such renewal, extension or replacement Lien, to the extent that the
principal amount of Indebtedness secured thereby does not exceed the principal
amount of such Indebtedness so secured unless such excess is permitted by Section
7.03 to be incurred and by this Section 7.01 to be secured by such
Lien at the time of the extension, renewal or replacement, the maturity thereof
is not shortened and such Lien is limited to all or a part of the property
subject to the Lien extended, renewed or replaced;


 


(i)                                     Liens on cash
collateral pursuant to Sections 3.01(d) and 3.08 of the Revolving
Credit Agreement (as in effect on the date hereof or any successor provisions
thereto);


 


(j)                                    other Liens
securing obligations, including Indebtedness for borrowed money, in an
aggregate principal amount (including the entire unused amount of committed
credit facilities and all outstanding Indebtedness, liabilities and
obligations) not exceeding 10% of the Borrower’s Consolidated Net Worth as of
the time of the granting of such Lien; provided, that, to the extent a Lien
granted pursuant to this Section 7.01(j) was permitted hereunder at the
time of the grant of such Lien, such Lien will continue to be permitted
hereunder notwithstanding a subsequent decrease in the Borrower’s Consolidated
Net Worth.


 


7.02.                     Investments.  Make any of
the following Investments:


 


(a)                                 any Acquisition
that is not a Permitted Acquisition;


 


51

















 


(b)                                 Investments in
Joint Ventures other  than Investments by the Borrower or any of
its Subsidiaries that would not cause a violation of Section 7.07; provided that if such Joint Ventures are not structured so
that neither the Borrower nor any Significant Subsidiary shall be responsible
for the acts or omissions of other companies except to the extent covered by
insurance or limited to Indebtedness for expenses permitted by Section 7.03(g),
the Borrower shall have determined that such structure would not individually
or in the aggregate with other similarly structured Joint Venture have a
Material Adverse Effect; or


 


(c)                                  any Minority
Investment other  than a Permitted Minority Investment.


 


7.03.                     Indebtedness.  Create,
incur, assume or suffer to exist any Indebtedness to a Person other than a Loan
Party, except:


 


(a)                                 Indebtedness
under the Loan Documents;


 


(b)                                 Indebtedness
listed on Schedule 7.03;


 


(c)                                  Guarantees of
the Borrower or any Subsidiary in
respect of Indebtedness otherwise permitted hereunder of the Borrower or any Subsidiary;


 


(d)                                 obligations
(contingent or otherwise) of the Borrower or any Subsidiary existing or arising
under any Swap Contract, provided that such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose
of directly mitigating risks associated with liabilities, commitments,
investments, assets, or property held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person, and not for
purposes of speculation or taking a “market view”;


 


(e)                                  Attributable
Indebtedness and purchase money obligations for fixed or capital assets within
the limitations set forth in Section 7.01(f);


 


(f)                                   Indebtedness secured by Liens described in Sections 7.01(a), (c),
(e) and (h);


 


(g)                                  Consolidated
Priority Indebtedness in an aggregate principal amount outstanding at any time
not to exceed 10% of the Borrower’s
Consolidated Net Worth and Tax Arrangement Priority Indebtedness in an aggregate
principal amount outstanding at any time not to exceed 10% of the Borrower’s Consolidated Net Worth, provided, in
each case, that the Leverage Ratio (calculated on a pro-forma basis after
giving effect to the incurrence of such Indebtedness) is less than 3.00 to
1.00; provided that, to the extent Indebtedness incurred pursuant to
this Section 7.03(f) was permitted hereunder at the time of the
incurrence thereof, such Indebtedness will continue to be permitted hereunder
notwithstanding a subsequent decrease in the Borrower’s Consolidated Net Worth;
or


 


(h)                                 other unsecured
Indebtedness of any Loan Party which is pari  passu with or subordinate to the Obligations in right of
payment, provided that the Leverage Ratio (calculated on a pro-forma
basis after giving effect to the incurrence of such Indebtedness and the
proceeds thereof) is less than 3.00 to 1.00.


 


52

















 


7.04.                     Fundamental Changes. 
Merge, dissolve, liquidate, consolidate with or into another Person, or,
unless permitted by Section 7.05, 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 that, so
long as no Default exists or would result therefrom:


 


(a)                                 any Subsidiary
may merge with (i) the Borrower, provided that the Borrower shall be the
continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided
that when any Guarantor is
merging with another Subsidiary, the Guarantor
shall be the continuing or surviving Person;


 


(b)                                 any Subsidiary
may Dispose of all or substantially all of its assets (upon voluntary liquidation
or otherwise) to the Borrower or to another Subsidiary; provided that if
the transferor in such a transaction is a Guarantor, then the transferee must either be the Borrower or a Guarantor;


 


(c)                                  the Borrower or
any of its Wholly-Owned Subsidiaries may enter into a merger as part of a
Permitted Acquisition, provided that the Borrower or such Wholly-Owned
Subsidiary owns or controls a majority of the surviving entity of such merger;
and


 


(d)                                 pursuant to a
Disposition permitted pursuant to Section 7.05.


 


The
restrictions set forth in this Section 7.04 apply only to the Borrower
and its Wholly-Owned Subsidiaries.


 


7.05.                     Dispositions.  Make any
Disposition except:


 


(a)                                 Dispositions of
obsolete or worn out property, whether now owned or hereafter acquired, in the
ordinary course of business;


 


(b)                                 Dispositions of
inventory in the ordinary course of business;


 


(c)                                  Dispositions of
property to the extent that the board of directors of the Borrower has
reasonably determined in good faith that the terms of the transaction are fair
and reasonable to the Borrower or such Subsidiary, as the case may be; and
within one year after the receipt of any Net Cash Proceeds with respect to such
Disposition the Company or such Subsidiary shall have used any Net Cash
Proceeds to (i) replace the properties or assets that were the subject of the
Disposition, (ii) acquire properties or assets in the businesses of the
Borrower and its Subsidiaries or (iii) repay all or part of the Obligations or
Indebtedness outstanding under the notes issued pursuant to the Note Purchase
Agreement, the Indebtedness outstanding under the Revolving Credit Agreement,
or the Indebtedness outstanding under this Agreement;


 


(d)                                 Dispositions of
property by any Subsidiary to the Borrower or to a Wholly-Owned Subsidiary or
by the Borrower to any Guarantor; provided that if the transferor of
such property is a Guarantor, the transferee thereof must either be the
Borrower or a Guarantor;


 


(e)                                  Dispositions
permitted by Section 7.04;


 


53

















 


(f)                                   Dispositions by
the Borrower and its Subsidiaries not otherwise permitted under this Section
7.05; provided that (i) at the time of such Disposition, no Default
shall exist or would result from such Disposition, (ii) the aggregate book
value of all property Disposed of in reliance on this clause (f) in any Fiscal
Year shall not exceed 10% of the Borrower’s Consolidated Net Worth as of the
consummation of such Disposition, (iii) the aggregate book value of all
property Disposed of in reliance on this clause (f) during the term of this
Agreement shall not exceed 30% of the Borrower’s Consolidated Net Worth as of
the consummation of such Disposition; and (iv) any Disposition pursuant to
clause (f) shall be for fair market value;


 


(g)                                  leases,
subleases, licenses or sublicenses granted in the ordinary course of business
to others, which could not reasonably be expected to have a Material Adverse
Effect;


 


(h)                                 the grant of
any Lien that is a Permitted Lien; and


 


(i)                                     Dispositions of
assets within 365 days after the acquisition thereof if (i) such assets are
outside the principal business areas to which the assets acquired, taken as a
whole, relate, and (ii) such assets are sold or disposed of for cash or any
other consideration which represents the fair market value thereof.


 


7.06.                     Restricted Payments. 
Declare or make, directly or indirectly, any Restricted Payment, except
that, in the case of clause (b), (c) and (d) below, so long as no Default shall
have occurred and be continuing at the time of any such action or would result
therefrom:


 


(a)                                 (i) each
Subsidiary may make Restricted Payments (A) to the Borrower or the Guarantors
and (B) to any other Person that owns an Equity Interest in such Subsidiary, in
the case of this clause (B), ratably according to their respective holdings of
the type of Equity Interest in respect of which such Restricted Payment is
being made and (ii) the Borrower may make Restricted Payments to any Guarantor;


 


(b)                                 the Borrower
and each Subsidiary may: (i) declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity
Interests of such Person; (ii) declare or pay cash dividends to its
stockholders and purchase, redeem or otherwise acquire for cash Equity
Interests issued by it, provided that no Default or Event of Default
exists under Section 8.01(a) or (f) or would result therefrom and
the Leverage Ratio (calculated on a pro-forma basis after giving effect to any
such Restricted Payments) is less than 3.00 to 1.00; and (iii) provided that no
Default or Event of Default exists under Section 8.01(a) or (f) or
would result therefrom, repurchase Equity Interests pursuant to the terms of
Section 6.10 of the Borrower’s Bylaws, the Plans and the Borrower’s Stock
Purchase Plan, all as in effect from time to time;


 


(c)                                  the Borrower
and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests
issued by it with the proceeds received from the substantially concurrent issue
of new shares of its common stock or other common Equity Interests; and


 


(d)                                 the Borrower
may issue and sell Equity Interests upon the exercise of any warrants, options
or rights to acquire such Equity Interests.


 


54

















 


The
restrictions set forth in this Section 7.06 apply only to the Borrower.


 


7.07.                     Change in Nature of Business.  Engage in any material line of business
substantially different from those lines of business conducted by the Borrower
and its Subsidiaries on the date hereof or any business substantially related
or incidental thereto.


 


7.08.                     Transactions with Affiliates.  Enter into any transaction of any kind with
any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the Borrower or such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm’s length transaction with a Person
other than an Affiliate; provided, that
this Section 7.08  shall not
restrict (a) payments otherwise allowed under this Agreement and other
transfers on account of Equity Interests of the Borrower or any Subsidiary, (b)
customary board of director fees, (c) any payments pursuant to the terms of the
certificate of incorporation or bylaws of the Borrower, or to any of the
Borrower’s employee benefit plans; (d) the rights, privileges and preferences
granted to the holders of Preferred Stock arising under any related certificate
of designation, investor rights agreement or regulatory side letter, each in
form and substance reasonably satisfactory to the Required Lenders and (e) so
long as the Borrower is subject to the filing requirements of the SEC, any
transaction that is otherwise permitted by any Borrower policy regarding such
transactions to the extent such policy was approved by the Borrower’s board of
directors.


 


7.09.                     Burdensome Agreements.  Except pursuant to the Revolving Credit
Agreement, the Note Purchase Agreement, the Foreign Subsidiary Credit Agreement
or other agreement governing Indebtedness permitted hereunder, enter into any
Contractual Obligation (other than this Agreement or any other Loan Document)
that (a) limits the ability (i) of any Subsidiary to make Restricted Payments
to the Borrower or any Guarantor or to otherwise transfer property to the
Borrower or any Guarantor, (ii) of any Subsidiary to Guarantee the Indebtedness
of the Borrower or (iii) of the Borrower or any Subsidiary to create, incur,
assume or suffer to exist Liens on property of such Person; provided, however,
that this clause (iii) shall not prohibit any negative pledge incurred or
provided in favor of any holder of Indebtedness permitted under Section 7.03(e)
solely to the extent any such negative pledge relates to the property financed
by or the subject of such Indebtedness; or (b) requires the grant of a Lien to
secure an obligation of such Person if a Lien is granted to secure another
obligation of such Person.  The foregoing
provision shall not apply to encumbrances or restrictions existing under or by
reason of: (a) applicable law, rule, regulation or order (including agreements
with regulatory authorities), (b) customary net worth, restrictions on cash or
other deposits and non-assignment provisions of any lease, license or other
contract, (c) customary restrictions with respect to a Subsidiary pursuant to
an agreement that has been entered into for the sale or disposition of all or
substantially all of the assets or Equity Interests of such Subsidiary, and (d)
customary provisions in joint venture agreements and other similar agreements
relating solely to the securities, assets and revenues of such Joint Venture or
other business venture.


 


7.10.                     Use of Proceeds.  Use
the proceeds of any Loan, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry margin stock (within the
meaning of Regulation U of the FRB) or to extend credit to others for the
purpose of 


 


55

















 


purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.


 


7.11.                     Financial
Covenants.


 


(a)                                 Leverage Ratio.  Permit the Leverage Ratio to be greater than
3.00 to 1.00 as of the end of any Fiscal Quarter.


 


(b)                                 Fixed Charge
Coverage Ratio.  Permit the
Fixed Charge Coverage Ratio to be less than 1.25 to 1.00 as of the end of any
Fiscal Quarter.


 


ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES


 


8.01.                     Events of Default.  Any
of the following shall constitute an Event of Default:


 


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


 


(b)                                 Specific
Covenants.  The
Borrower fails to perform or observe any term, covenant or agreement contained
in any of Section 6.03, 6.05 (insofar as such Section requires
the preservation of the corporate existence of any Borrower), or 6.11 or
Article VII; or


 


(c)                                  Other Defaults.  Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days; or


 


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


 


(e)                                  Cross-Default.  (i) The Borrower or any Subsidiary (A) fails
to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness
or Guarantee (other than Indebtedness hereunder and Indebtedness under the
Revolving Credit Agreement and the Foreign Subsidiaries Credit Agreement)
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% of the Borrower’s Consolidated
Net Worth, or (B) fails to observe or perform any other agreement or condition
relating to any such Indebtedness or Guarantee or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
occurs, the effect of which default or other event is to cause, or to permit
the holder or holders of such Indebtedness or the beneficiary or beneficiaries
of such Guarantee (or a trustee or agent on behalf of such holder or holders or


 


56
















 


beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs an “Event of Default” under (and
as defined in) either the Revolving Credit Agreement or the Foreign Subsidiary
Credit Agreement; or


 


(f)                                   Insolvency
Proceedings, Etc.  Any Loan
Party or any of its Subsidiaries institutes or consents to the institution of
any proceeding under any Debtor Relief Law, or makes an assignment for the benefit
of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
is appointed without the application or consent of such Person and the
appointment continues undischarged or unstayed for 60 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or
any material part of its property is instituted without the consent of such
Person and continues undismissed or unstayed for 60 calendar days, or an order
for relief is entered in any such proceeding; or


 


(g)                                  Inability to
Pay Debts; Attachment.  (i) The
Borrower or any other Loan Party becomes unable or admits in writing its
inability or fails generally to pay its debts as they become due, or (ii) any
writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and
is not released, vacated or fully bonded within 30 days after its issue or
levy; or


 


(h)                                 Judgments.  There is entered against the Borrower or any
Subsidiary (i) one or more final judgments or orders for the payment of money
in an aggregate amount (as to all such judgments or orders) exceeding 3% of the
Borrower’s Consolidated Net Worth (to the extent not covered by insurance as to
which the insurer does not dispute coverage), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor upon
such judgment or order, or (B) there is a period of 10 consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or


 


(i)                                     ERISA.  An ERISA Event occurs with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Borrower under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess
of 3% of the Borrower’s Consolidated Net Worth; or


 


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


 


57

















 


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


 


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


 


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


 


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


 


provided, however,
that upon the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States,
the 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 Administrative Agent or any Lender.


 


8.03.                     Application of Funds.  After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately
due and payable as set forth in the proviso to Section 8.02), any
amounts received on account of the Obligations shall be applied by the Administrative
Agent in the following order:


 


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


 


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


 


Third, to payment of
that portion of the Obligations constituting accrued and unpaid interest on the
Loans and other Obligations, ratably among the Lenders in proportion to the
respective amounts described in this clause Third payable to them;


 


Fourth, to payment of
that portion of the Obligations constituting unpaid principal of the Loans,
ratably among the Lenders in proportion to the respective amounts described in
this clause Fourth held by them; and


 


Last, the balance,
if any, after all of the Obligations have been indefeasibly paid in full, to
the Borrower or as otherwise required by Law.


 


58

















 


ARTICLE IX.

ADMINISTRATIVE AGENT


 


9.01.                     Appointment
and Authority.  Each of the
Lenders hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto.  The provisions of
this Article are solely for the benefit of the Administrative Agent and the
Lenders, and the Borrower shall not have
rights as a third party beneficiary of any of such provisions.


 


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


 


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


 


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


 


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


 


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


 


The
Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in
the absence of its own gross negligence or willful misconduct.  The Administrative Agent 


 


59

















 


shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower or
a Lender.


 


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


 


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


 


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


 


9.06.                     Resignation of Administrative Agent.  The Administrative Agent may at any time give
notice of its resignation to the Lenders and the Borrower.  Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with
the Borrower, to appoint a successor, which shall be a bank with an office in
the United States, or an Affiliate of any such bank with an office in the
United States.  If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders, appoint a successor Administrative Agent 


 


60

















 


meeting the qualifications set forth above; provided
that if the Administrative Agent shall notify the Borrower and the Lenders that
no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender directly, until
such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section.  Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of
its duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this Section).  The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.


 


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


 


9.08.                     No Other Duties, Etc.  Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers or Agents listed on the
cover page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent or a Lender hereunder.


 


9.09.                     Administrative
Agent May File Proofs of Claim.  In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether the principal of
any Loan shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Administrative Agent shall have made
any demand on the Borrower) shall be entitled and empowered, by intervention in
such proceeding or otherwise


 


(a)                                 to file and
prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Administrative 


 


61

















 


Agent and their respective
agents and counsel and all other amounts due the Lenders and the Administrative
Agent under Sections 2.04(i) and (j), 2.10 and 10.04)
allowed in such judicial proceeding; and


 


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


 


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, in the event that
the Administrative Agent shall consent to the making of such payments directly
to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.10 and 10.04.


 


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


 


9.10.                     Guaranty
Matters.  The Lenders irrevocably
authorize the Administrative Agent, at its option and in its discretion, to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Significant Subsidiary. Upon request by the Administrative Agent
at any time, the Required Lenders will confirm in writing the Administrative
Agent’s authority to release any Guarantor from its obligations under the
Guaranty pursuant to this Section 9.10.


 


ARTICLE X.

MISCELLANEOUS


 


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


 


(a)                                 waive any
condition set forth in Section 4.01(a) without the written consent of
each Lender;


 


(b)                                 postpone any
date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;


 


(c)                                  reduce the
principal of, or the rate of interest specified herein on, any Loan, or  any fees or other amounts payable hereunder
or under any other Loan Document without the 


 


62

















 


written consent of each
Lender directly affected thereby; provided, however, that only
the consent of the Required Lenders shall be necessary (i) to amend the definition
of “Default Rate” or to waive any obligation of the Borrower to pay interest at
the Default Rate or (ii) to amend any
financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or
to reduce any fee payable hereunder;


 


(d)                                 change Sections
2.13(a), 2.14, and 8.03, in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each
Lender;


 


(e)                                  change any
provision of this Section 10.01 or the definition of “Required Lenders”
or any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; or


 


(f)                                   release any
Guarantor from the Guaranty without the written consent of each Lender, except
to the extent the release of any Guarantor is permitted pursuant to Section 9.10
(in which case such release may be made by the Administrative Agent acting
alone);


 


and,
provided  further, that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above, affect the rights or duties of the Administrative Agent
under this Agreement or any other Loan Document.  Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder (and any amendment, waiver or consent
which by its terms requires the consent of all Lenders or each affected Lender
may be effected with the consent of the applicable Lenders other than
Defaulting Lenders), except that any waiver, amendment or modification
requiring the consent of all Lenders or each affected Lender that by its terms
affects any Defaulting Lender more adversely than other affected Lenders shall
require the consent of such Defaulting Lender.


 


10.02.              Notices;
Effectiveness; Electronic Communication.


 


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


 


(i)                                     if to the
Borrower or the Administrative Agent, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on Schedule
10.02; and


 


(ii)                                  if to any other
Lender, to the address, telecopier number, electronic mail address or telephone
number specified in its Administrative Questionnaire (including, as
appropriate, notices delivered solely to the Person designated by a Lender on
its 


 


63

















 


Administrative Questionnaire
then in effect for the delivery of notices that may contain material non-public
information relating to the Borrower).


 


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


 


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


 


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


 


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


 


64

















 


determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Agent Party; provided,
however, that in no event shall any Agent Party have any liability to
the Borrower, any Lender or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).


 


(d)                                 Change of
Address, Etc.  Each of the
Borrower and the Administrative Agent may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to
the other parties hereto.  Each other
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Borrower and the Administrative
Agent.  In addition, each Lender agrees
to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name, telephone
number, telecopier number and electronic mail address to which notices and
other communications may be sent and (ii) accurate wire instructions for such
Lender.  Furthermore, each Public Lender
agrees to cause at least one individual at or on behalf of such Public Lender
to at all times have selected the “Private Side Information” or similar
designation on the content declaration screen of the Platform in order to
enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States
Federal and state securities Laws, to make reference to Borrower Materials that
are not made available through the “Public Side Information” portion of the
Platform and that may contain material non-public information with respect to
the Borrower or its securities for purposes of United States Federal or state
securities laws.


 


(e)                                  Reliance by
Administrative Agent and Lenders.  The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
purportedly given by or on behalf of the Borrower even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation
thereof.  The Borrower shall indemnify
the Administrative Agent, each Lender and the Related Parties of each of them
from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of the Borrower; provided
that such indemnity shall not, as to any person, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such person or (y) result from a claim brought by the Borrower or any other
Loan Party against such person for material breach of such person’s obligations
hereunder or under any other Loan Document, if the Borrower or such other Loan
Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction.  All telephonic notices to and other
telephonic communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.


 


10.03.              No Waiver;
Cumulative Remedies; Enforcement.  No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further 


 


65

















 


exercise thereof or the exercise of any other right,
remedy, power or privilege.  The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.


 


Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan
Documents against the Loan Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 8.02 for the benefit of all the Lenders; provided,
however, that the foregoing shall not prohibit (a) the Administrative
Agent from exercising on its own behalf the rights and remedies that inure to
its benefit (solely in its capacity as Administrative Agent) hereunder and
under the other Loan Documents, (b) any Lender from exercising setoff rights in
accordance with Section 10.08 (subject to the terms of Section 2.14),
or (c) any Lender from filing proofs of claim or appearing and filing pleadings
on its own behalf during the pendency of a proceeding relative to any Loan
Party under any Debtor Relief Law; and provided, further, that if
at any time there is no Person acting as Administrative Agent hereunder and
under the other Loan Documents, then (i) the Required Lenders shall have the
rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02
and (ii) in addition to the matters set forth in clauses (b) and (c) of the
preceding proviso and subject to Section 2.14, any Lender may, with the
consent of the Required Lenders, enforce any rights and remedies available to
it and as authorized by the Required Lenders.


 


10.04.              Expenses;
Indemnity; Damage Waiver.


 


(a)                                 Costs and
Expenses.  The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent), in connection with
the syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all out-of-pocket expenses
incurred by the Administrative Agent or any Lender (including the fees, charges
and disbursements of any counsel for the Administrative Agent or any Lender) in
connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under
this Section, or (B) in connection with the Loans made hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.


 


(b)                                 Indemnification
by the Borrower.  The
Borrower shall indemnify the Administrative Agent (and any sub-agent thereof),
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses (including fees, charges and disbursements of any counsel for any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their 


 


66

















 


respective obligations
hereunder or thereunder, the consummation of the transactions contemplated
hereby or thereby, or, in the case of the Administrative Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents (including in respect of any matters
addressed in Section 3.01), (ii) any Loan or the use or proposed use of
the proceeds therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower
or any of its Subsidiaries, or any Environmental Liability related in any way
to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought
by a third party or by the Borrower or any other Loan Party, and regardless of
whether any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available (A) to compensate any Person
other than the Administrative Agent and its Affiliates for the expenses
described in Section 10.4(a)(i) above or (B) to the extent that such
losses, claims, damages, liabilities or related expenses (x) are determined by
a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
(y) result from a claim brought by the Borrower or any other Loan Party against
an Indemnitee for a material breach of such Indemnitee’s obligations hereunder
or under any other Loan Document, if the Borrower or such other Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.


 


(c)                                  Reimbursement
by Lenders.  To the
extent that the Borrower for any reason fails to indefeasibly pay any amount
required under subsection (a) or (b) of this Section to be paid by it to the
Administrative Agent (or any sub-agent thereof) or any Related Party of any of
the foregoing, each Lender severally agrees to pay to the Administrative Agent
(or any such sub-agent) or such Related Party, as the case may be, such Lender’s
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) in its capacity as such, or
against any Related Party of any of the foregoing acting for the Administrative
Agent (or any such sub-agent) in connection with such capacity.  The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.13(d).


 


(d)                                 Waiver of
Consequential Damages, Etc.  To the fullest extent permitted by applicable
law, the Borrower shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients
of any information or other materials distributed to such unintended recipients
by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for
direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnitee as determined by a final and nonappealable
judgment of a court of competent jurisdiction.


 


67
















 


(e)           Payments. 
All amounts due under this Section shall be payable not later than
ten Business Days after demand therefor.


 


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


 


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


 


10.06.     Successors and Assigns.


 


(a)           Successors and Assigns Generally.  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except
(i) to an assignee in accordance with the provisions of subsection
(b) of this Section, (ii) by way of participation in accordance with
the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null
and void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and,
to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


(b)           Assignments by Lenders.  Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Loans at the time owing to it); provided
that any such assignment shall be subject to the following conditions:


 


68

















 


(i)            Minimum Amounts.


 


(A)          in the case of an assignment of the entire remaining amount
of the assigning Lender’s Loans (together with any Loans of any Affiliates of
such Lender or Approved Funds administered or managed by such Lender or its
Affiliates) at the time owing to such Lender, its Affiliates and any Approved
Funds administered or managed by such Lender or its Affiliates or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and


 


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


 


(ii)           Proportionate Amounts.  Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans assigned;


 


(iii)          Required Consents. 
The consent of the Administrative Agent and, unless an Event of Default
has occurred and is continuing, the Borrower (such consents not to be
unreasonably withheld or delayed) shall be required for any assignment other
than an assignment to a Lender, an Affiliate of such Lender or an Approved Fund
with respect to such Lender.


 


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


 


(v)           No Assignment to Certain Persons.  No such assignment shall be made (A) to
the Borrower or any of the Borrower’s Subsidiaries, or (B) to any
Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming
a Lender hereunder, would constitute any of the foregoing Persons described in
this clause (B), or (C) to a natural person.


 


69

















 


(vi)          Certain Additional Payments.  In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be
effective unless and until, in addition to the other conditions thereto set
forth herein, the parties to the assignment shall make such additional payments
to the Administrative Agent in an aggregate amount sufficient, upon
distribution thereof as appropriate (which may be outright payment, purchases
by the assignee of participations or subparticipations, or other compensating
actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously
requested but not funded by the Defaulting Lender, to each of which the
applicable assignee and assignor hereby irrevocably consent), to (x) pay
and satisfy in full all payment liabilities then owed by such Defaulting Lender
to the Administrative Agent or any Lender hereunder (and interest accrued
thereon) and (y) acquire (and fund as appropriate) its full pro rata share
of all Loans in accordance with its Applicable Percentage.  Notwithstanding the foregoing, in the event
that any assignment of rights and obligations of any Defaulting Lender
hereunder shall become effective under applicable Law without compliance with
the provisions of this paragraph, then the assignee of such interest shall be
deemed to be a Defaulting Lender for all purposes of this Agreement until such
compliance occurs.


 


Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 3.01, 3.04,
3.05, and 10.04 with respect to facts and circumstances occurring
prior to the effective date of such assignment. 
Upon request, the Borrower (at its expense) shall execute and deliver a
Note to the assignee Lender.  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section.


 


(c)           Register. 
The Administrative Agent, acting solely for this purpose as an agent of
the Borrower (and such agency being solely for tax purposes), shall maintain at
the Administrative Agent’s Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amounts of the Loans
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
In addition, the Administrative Agent shall maintain on the Register
information regarding the designation, and revocation of designation, of any
Lender as a Defaulting Lender.  The Register shall be available for 


 


70

















 


inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.


 


(d)           Participations. 
Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural person, a Defaulting Lender or the Borrower or any of the
Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or
a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Loans owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under
this Agreement.


 


Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any  provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 10.01 that
affects such Participant.  Subject to
subsection (e) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05  to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section.  To
the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.08  as
though it were a Lender, provided such Participant agrees to be subject
to Section 2.14 as though it were a Lender.


 


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


 


(f)            Participant Register.
Each Lender that sells a participation, acting as an agent of the Borrower
solely for purposes of applicable United States federal income tax law and
Treasury regulations promulgated thereunder, shall maintain a “book entry”
register (as further described in the foregoing Treasury regulations) on which
it records the name and address of the applicable Participant and the principal
amounts of such Participant’s interest in the Loans and Commitments (each such
register, a “Participant Register”). 
The entries in the Participant Register shall be conclusive absent
manifest error, and the applicable Lender shall treat each Person whose name is
recorded in the Participant Register pursuant to the terms hereof as having “ownership
of an interest” (as such term is defined the applicable Treasury regulations)
in such Loans and Commitments for all purposes of this Agreement,
notwithstanding any notice to the contrary. 
Upon request by the Borrower, such Lender shall make the Participant
Register available to the Borrower.


 


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


 


10.07.     Treatment of Certain Information;
Confidentiality.  Each of the
Administrative Agent and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates’ respective partners,
directors, officers, employees, agents, trustees, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any
regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies hereunder
or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.16(c) or
(ii) any actual or prospective counterparty (or its advisors) to any swap
or derivative transaction relating to the Borrower and its obligations,
(g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach
of this Section or (y) becomes available to the Administrative Agent,
any Lender or any of their respective Affiliates on a nonconfidential basis
from a source other than the Borrower unless the Administrative Agent or such
Lender has knowledge that such source is subject to an obligation to the
Borrower to keep such information confidential. 
For purposes of this Section, “Information” means all information
received from the Borrower or any Subsidiary relating to the Borrower or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary.  Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


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


 


10.08.     Right of Setoff.  If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general



 


72

















 


or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender or any such Affiliate to or for the
credit or the account of the Borrower against any and all of the obligations of
the Borrower now or hereafter existing under this Agreement or any other Loan
Document to such Lender, irrespective of whether or not such Lender shall have
made any demand under this Agreement or any other Loan Document and although
such obligations of the Borrower may be contingent or unmatured or are owed to
a branch or office of such Lender different from the branch or office holding
such deposit or obligated on such indebtedness; provided, that in the event
that any Defaulting Lender shall exercise any such right of setoff,
(x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions
of Section 2.18 and, pending such payment, shall be segregated by
such Defaulting Lender from its other funds and deemed held in trust for the
benefit of the Administrative Agent and the Lenders, and (y) the
Defaulting Lender shall provide promptly to the Administrative Agent a statement
describing in reasonable detail the Obligations owing to such Defaulting Lender
as to which it exercised such right of setoff. 
The rights of each Lender and its Affiliates under this Section are
in addition to other rights and remedies (including other rights of setoff)
that such Lender or its Affiliates may have. 
Each Lender agrees to notify the Borrower and the Administrative Agent
promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.


 


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


 


10.10.     Counterparts; Integration;
Effectiveness.  This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract.  This Agreement and the other Loan Documents
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof.  Except as provided in Section 4.01,
this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto.  Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or
other electronic imaging means shall be effective as delivery of a manually
executed counterpart of this Agreement.


 


73

















 


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


 


10.12.     Severability.  If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable,
(a) the legality, validity and enforceability of the remaining provisions
of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations
to replace the illegal, invalid or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.  Without limiting the
foregoing provisions of this Section 10.12, if and to the extent
that the enforceability of any provisions in this Agreement relating to
Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, then such provisions shall be deemed to
be in effect only to the extent not so limited.


 


10.13.     Replacement of Lenders.  If any Lender requests
compensation under Section 3.04, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting
Lender, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 10.06), all of its
interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment), provided that:


 


(a)           the Borrower shall have paid
to the Administrative Agent the assignment fee specified in Section 10.06(b);


 


(b)           such Lender shall have received payment of an amount equal
to 100% of the outstanding principal of its Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.05) from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts);


 


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


 


(d)           such assignment does not conflict with applicable Laws.


 


74

















 


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


 


10.14.     Governing Law; Jurisdiction; Etc.


 


(a)           GOVERNING LAW. 
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.


 


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


 


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


 


(d)           SERVICE OF PROCESS. 
EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE
MANNER PROVIDED FOR NOTICES IN SECTION 10.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.


 


75

















 


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


 


10.16.     No Advisory or Fiduciary
Responsibility.  In
connection with all aspects of each transaction contemplated hereby (including
in connection with any amendment, waiver or other modification hereof or of any
other Loan Document), the Borrower acknowledges and agrees that:
(i) (A) the arranging and other services regarding this Agreement
provided by the Administrative Agent and the Arrangers are arm’s-length
commercial transactions between the Borrower and its Affiliates, on the one
hand, and the Administrative Agent and the Arrangers, on the other hand,
(B) the Borrower has consulted its own legal, accounting, regulatory and
tax advisors to the extent it has deemed appropriate, and (C) the Borrower
is capable of evaluating, and understands and accepts, the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan
Documents; (ii) (A) the Administrative Agent and each of the
Arrangers is and has been acting solely as a principal and, except as expressly
agreed in writing by the relevant parties, has not been, is not, and will not
be acting as an advisor, agent or fiduciary for the Borrower or any of its
Affiliates, or any other Person and (B) neither the Administrative Agent
nor either of the Arrangers  has any
obligation to the Borrower or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; and (iii) the Administrative Agent
and the Arrangers and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the
Borrower and its Affiliates, and neither the Administrative Agent nor either of
the Arrangers  has any obligation to
disclose any of such interests to the Borrower or its Affiliates.  To the fullest extent permitted by law, the Borrower
hereby waives and releases any claims that it may have against the
Administrative Agent and the Arrangers with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.


 


10.17.     Electronic Execution of Assignments
and Certain Other Documents.  The words “execution,” “signed,” “signature,”
and words of like import in any Assignment and Assumption or in any amendment
or other modification hereof (including waivers and consents) shall be deemed
to include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as
a manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and 


 


76

















 


National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the
Uniform Electronic Transactions Act.


 


10.18.     USA PATRIOT Act.  Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements
of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act.  The Borrower
shall, promptly following a request by the Administrative Agent or any Lender,
provide all documentation and other information that the Administrative Agent
or such Lender requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and
regulations, including the Act.


 


[Rest of page intentionally
left blank; signature pages follow]


 


77
















 


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


 


	
   

  	
  AECOM TECHNOLOGY CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shelley Green

  
	
   

  	
  Name:

  	
  Shelley Green

  
	
   

  	
  Title:

  	
  Vice President, Treasurer

  



 


S-1

















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Rittelmeyer

  
	
   

  	
  Name:

  	
  Robert Rittelmeyer

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mathew Griesbach

  
	
   

  	
  Name:

  	
  Mathew Griesbach

  
	
   

  	
  Title:

  	
  Vice President

  



 


S-2

















 


	
   

  	
  UNION BANK, N.A.,

  
	
   

  	
  as a Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David J. Stassel

  
	
   

  	
  Name:

  	
  David J. Stassel

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UNION BANK, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David J. Stassel

  
	
   

  	
  Name:

  	
  David J. Stassel

  
	
   

  	
  Title:

  	
  Vice President

  



 


S-3

















 


	
   

  	
  BNP PARIBAS,

  
	
   

  	
  as a Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Jamie Dillon

  
	
   

  	
  Name:

  	
  Jamie Dillon

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mary-Ann Wong

  
	
   

  	
  Name:

  	
  Mary-Ann Wong

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BNP PARIBAS,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Jamie Dillon

  
	
   

  	
  Name:

  	
  Jamie Dillon

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mary-Ann Wong

  
	
   

  	
  Name:

  	
  Mary-Ann Wong

  
	
   

  	
  Title:

  	
  Vice President

  



 


S-4

















 


	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION,

  
	
   

  	
  as a Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul L. Hatton

  
	
   

  	
  Name:

  	
  Paul L. Hatton

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul L. Hatton

  
	
   

  	
  Name:

  	
  Paul L. Hatton

  
	
   

  	
  Title:

  	
  Managing Director

  



 


S-5

















 


	
   

  	
  SCOTIA BANC, INC.,

  
	
   

  	
  as a Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J.F. Todd

  
	
   

  	
  Name:

  	
  J.F. Todd

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SCOTIA BANC, INC.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J.F. Todd

  
	
   

  	
  Name:

  	
  J.F. Todd

  
	
   

  	
  Title:

  	
  Managing Director

  



 


S-6

















 


	
   

  	
  WELLS FARGO BANK, N.A.,

  
	
   

  	
  as a Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Vanessa Sheh Meyer

  
	
   

  	
  Name:

  	
  Vanessa Sheh Meyer

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Vanessa Sheh Meyer

  
	
   

  	
  Name:

  	
  Vanessa Sheh Meyer

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 


S-7

















 


	
   

  	
  BANK OF CHINA, LOS ANGELES BRANCH,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Feng Chang

  
	
   

  	
  Name:

  	
  Feng Chang

  
	
   

  	
  Title:

  	
  FVP and Branch Manager

  



 


S-8

















 


	
   

  	
  UNITED OVERSEAS BANK LIMITED, NEW YORK AGENCY,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ K. Jin Koh

  
	
   

  	
  Name:

  	
  K. Jin Koh

  
	
   

  	
  Title:

  	
  Senior Vice President & General Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mario Sheng

  
	
   

  	
  Name:

  	
  Mario Sheng

  
	
   

  	
  Title:

  	
  Assistant Vice President

  



 


S-9

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ling Li

  
	
   

  	
  Name:

  	
  Ling Li

  
	
   

  	
  Title:

  	
  Vice President

  



 


S-10
















 


	
   

  	
  SUMITOMO
  MITSUI BANKING CORPORATION,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Yasuhiko Imai

  
	
   

  	
  Name:

  	
  Yasuhiko
  Imai

  
	
   

  	
  Title:

  	
  Group
  Head

  



 


S-11

















 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John I. Paul

  
	
   

  	
  Name:

  	
  John
  I. Paul

  
	
   

  	
  Title:

  	
  Portfolio
  Manager

  



 


S-12

















 


	
   

  	
  BANK
  OF TAIWAN, NEW YORK AGENCY,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas K. C. Wu

  
	
   

  	
  Name:

  	
  Thomas
  K. C. Wu

  
	
   

  	
  Title:

  	
  VP &
  General Manager

  



 


S-13

















 


	
   

  	
  BARCLAYS
  BANK PLC,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alexander Harrison

  
	
   

  	
  Name:

  	
  Alexander
  Harrison

  
	
   

  	
  Title:

  	
  Director

  



 


S-14

















 


	
   

  	
  CHANG
  HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Eric Y.S. Tsai

  
	
   

  	
  Name:

  	
  Eric
  Y.S. Tsai

  
	
   

  	
  Title:

  	
  VP &
  General Manager

  



 


S-15

















 


	
   

  	
  DEUTSCHE
  BANK AG, NEW YORK BRANCH,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Stefan Freckmann

  
	
   

  	
  Name:

  	
  Stefan
  Freckmann

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Oliver Schwarz

  
	
   

  	
  Name:

  	
  Oliver
  Schwarz

  
	
   

  	
  Title:

  	
  Director

  



 


S-16

















 


	
   

  	
  HUA
  NAN COMMERCIAL BANK LTD., LOS ANGELES BRANCH,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Oliver C.H. Hsu

  
	
   

  	
  Name:

  	
  Oliver
  C.H. Hsu

  
	
   

  	
  Title:

  	
  V.P. &
  General Manager

  



 


S-17

















 


	
   

  	
  KEY
  BANK NATIONAL ASSOCIATION,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Frank J. Jancar

  
	
   

  	
  Name:

  	
  Frank
  J. Jancar

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


S-18

















 


	
   

  	
  TAIWAN
  BUSINESS BANK, L.A. BRANCH,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alex Wang

  
	
   

  	
  Name:

  	
  Alex
  Wang

  
	
   

  	
  Title:

  	
  S.V.P. &
  General Manager

  



 


S-19

















 


	
   

  	
  THE
  BANK OF EAST ASIA LIMITED, LOS ANGELES BRANCH,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Chong Tan

  
	
   

  	
  Name:

  	
  Chong
  Tan

  
	
   

  	
  Title:

  	
  VP &
  Credit Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Victor Li

  
	
   

  	
  Name:

  	
  Victor
  Li

  
	
   

  	
  Title:

  	
  General
  Manager

  



 


S-20
















 


	
   

  	
  CAJA DE A HORROS Y MONTE DE PIEDAD DE MADRID
  MIAMI AGENCY,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Manuel Nuñez

  
	
   

  	
  Name:

  	
  Manuel
  Nuñez

  
	
   

  	
  Title:

  	
  General
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jose Cueto

  
	
   

  	
  Name:

  	
  Jose
  Cueto

  
	
   

  	
  Title:

  	
  Senior
  VP & Deputy General Manager

  



 


S-21

















 


	
   

  	
  E.
  SUN COMMERCIAL  BANK, LTD., LOS
  ANGELES BRANCH,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward Chen

  
	
   

  	
  Name:

  	
  Edward
  Chen

  
	
   

  	
  Title:

  	
  VP &
  General Manager

  



 


S-22

















 


	
   

  	
  STATE
  BANK OF INDIA (CALIFORNIA), LOS ANGELES BRANCH,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  U Shantharama Shenoy

  
	
   

  	
  Name:

  	
  U
  Shantharama Shenoy

  
	
   

  	
  Title:

  	
  Vice
  President & Manager

  



 


S-23

















 


	
   

  	
  COMERICA
  BANK,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Don R. Carruth

  
	
   

  	
  Name:

  	
  Don
  R. Carruth

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


S-24

















 


	
   

  	
  MEGA
  INTERNATIONAL COMMERCIAL BANK CO., LTD. NEW YORK BRANCH,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Priscilla Hsing

  
	
   

  	
  Name:

  	
  Priscilla
  Hsing

  
	
   

  	
  Title:

  	
  VP &
  DGM

  



 


S-25

















 


	
   

  	
  BANK
  OF COMMUNICATIONS CO., LTD. NEW YORK BRANCH,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Shelley He

  
	
   

  	
  Name:

  	
  Shelley
  He

  
	
   

  	
  Title:

  	
  Deputy
  General Manager

  



 


S-26

















 


	
   

  	
  THE
  CHIBA BANK, LTD., NEW YORK BRANCH,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Yukihito Inamura

  
	
   

  	
  Name:

  	
  Yukihito
  Inamura

  
	
   

  	
  Title:

  	
  General
  Manager

  



 


S-27

















 


	
   

  	
  THE
  NORTHERN TRUST COMPANY,

  
	
   

  	
  as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Brandon Rolex

  
	
   

  	
  Name:

  	
  Brandon
  Rolex

  
	
   

  	
  Title:

  	
  Vice President

  



 


S-28