exv10w1wa






EXHIBIT 10.1(a)




CREDIT AGREEMENT




dated as of




September 9, 2010




among




ALLEGHANY CORPORATION,

as Borrower,




The LENDERS Party Hereto,




and




U.S. BANK NATIONAL ASSOCIATION,

as Administrative Agent

 






$100,000,000 Credit Facility




consisting of




$50,000,000 Secured Tranche A Facility

&

$50,000,000 Unsecured Tranche B Facility

 






U.S. BANK NATIONAL ASSOCIATION,

as Arranger









 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	Page
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	Section 1.01. Defined Terms
	 	 	1	 
	Section 1.02. Classification of Loans, Borrowings and Commitments
	 	 	15	 
	Section 1.03. Terms Generally
	 	 	15	 
	Section 1.04. Accounting Terms; GAAP
	 	 	16	 
	 
	 	 	 	 
	ARTICLE II THE CREDITS
	 	 	16	 
	 
	 	 	 	 
	Section 2.01. Commitments
	 	 	16	 
	Section 2.02. Loans and Borrowings
	 	 	17	 
	Section 2.03. Requests for Borrowings
	 	 	17	 
	Section 2.04. Borrowing Base
	 	 	18	 
	Section 2.05. Funding of Borrowings
	 	 	18	 
	Section 2.06. Interest Elections
	 	 	19	 
	Section 2.07. Termination and Reduction of Commitments
	 	 	20	 
	Section 2.08. Repayment of Loans; Evidence of Debt
	 	 	21	 
	Section 2.09. Optional and Mandatory Prepayment of Loans
	 	 	21	 
	Section 2.10. Fees
	 	 	22	 
	Section 2.11. Interest
	 	 	23	 
	Section 2.12. Alternate Rate of Interest
	 	 	24	 
	Section 2.13. Increased Costs
	 	 	24	 
	Section 2.14. Break Funding Payments
	 	 	25	 
	Section 2.15. Taxes
	 	 	26	 
	Section 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	28	 
	Section 2.17. Mitigation Obligations; Replacement of Lenders
	 	 	29	 
	Section 2.18. Defaulting Lenders
	 	 	30	 
	 
	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES
	 	 	30	 
	 
	 	 	 	 
	Section 3.01. Organization; Powers
	 	 	30	 
	Section 3.02. Authorization; Enforceability
	 	 	30	 
	Section 3.03. Governmental Approvals; No Conflicts
	 	 	31	 
	Section 3.04. Financial Condition; No Material Adverse Change
	 	 	31	 
	Section 3.05. Properties and Insurance
	 	 	31	 
	Section 3.06. Litigation and Environmental Matters
	 	 	32	 
	Section 3.07. Compliance with Laws and Agreements
	 	 	32	 
	Section 3.08. Investment Company Status
	 	 	32	 
	Section 3.09. Taxes
	 	 	32	 
	Section 3.10. ERISA
	 	 	32	 
	Section 3.11. Disclosure
	 	 	33	 






i









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	 	Page
	Section 3.12. Margin Stock
	 	 	33	 
	Section 3.13. Subsidiaries
	 	 	33	 
	Section 3.14. Regulatory Restrictions on Borrowing
	 	 	33	 
	Section 3.15. Priority of Liens
	 	 	33	 
	Section 3.16. Solvent
	 	 	34	 
	Section 3.17. Material Agreements
	 	 	34	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS
	 	 	34	 
	 
	 	 	 	 
	Section 4.01. Effective Date
	 	 	34	 
	Section 4.02. Each Loan
	 	 	35	 
	 
	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS
	 	 	35	 
	 
	 	 	 	 
	Section 5.01. Financial Statements and Other Information
	 	 	35	 
	Section 5.02. Notices of Defaults
	 	 	37	 
	Section 5.03. Existence; Conduct of Business
	 	 	37	 
	Section 5.04. Payment of Obligations
	 	 	37	 
	Section 5.05. Maintenance of Properties; Insurance
	 	 	37	 
	Section 5.06. Books and Records; Inspection Rights
	 	 	38	 
	Section 5.07. Compliance with Laws
	 	 	38	 
	Section 5.08. Use of Proceeds
	 	 	38	 
	Section 5.09. Account
	 	 	38	 
	 
	 	 	 	 
	ARTICLE VI NEGATIVE COVENANTS
	 	 	38	 
	 
	 	 	 	 
	Section 6.01. Liens
	 	 	38	 
	Section 6.02. Indebtedness
	 	 	39	 
	Section 6.03. Merger
	 	 	39	 
	Section 6.04. Change of Business
	 	 	39	 
	Section 6.05. Sale of Assets
	 	 	39	 
	Section 6.06. Transactions with Affiliates
	 	 	40	 
	Section 6.07. Restricted Payments
	 	 	40	 
	Section 6.08. Clauses Restricting Subsidiary Distributions
	 	 	40	 
	Section 6.09. Financial Covenants
	 	 	40	 
	 
	 	 	 	 
	ARTICLE VII EVENTS OF DEFAULT
	 	 	41	 
	ARTICLE VIII AGENTS
	 	 	43	 
	 
	 	 	 	 
	Section 8.01. Appointment
	 	 	43	 






ii









 






TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	 	 	 	Page

	ARTICLE IX MISCELLANEOUS
	 	 	46	 
	 
	 	 	 	 
	Section 9.01. Notices; Electronic Delivery
	 	 	46	 
	Section 9.02. Waivers; Amendments
	 	 	48	 
	Section 9.03. Expenses; Indemnity: Damage; Waiver
	 	 	49	 
	Section 9.04. Successors and Assigns
	 	 	50	 
	Section 9.05. Survival
	 	 	53	 
	Section 9.06. Counterparts; Integration; Effectiveness
	 	 	53	 
	Section 9.07. Severability
	 	 	54	 
	Section 9.08. Right of Setoff
	 	 	54	 
	Section 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	54	 
	Section 9.10. WAIVER OF JURY TRIAL
	 	 	55	 
	Section 9.11. Headings
	 	 	55	 
	Section 9.12. Confidentiality
	 	 	55	 
	Section 9.13. Highest Lawful Rate
	 	 	56	 
	Section 9.14. USA Patriot Act
	 	 	56	 






	 	 	 	 	 

	SCHEDULES:
	 	 	 	 
	Schedule 1.01

	 	-
	 	Material Subsidiaries
	Schedule 2.01

	 	-
	 	Commitments
	Schedule 3.06

	 	-
	 	Litigation
	Schedule 5.01(d)

	 	-
	 	Investment Schedule
	 
	 	 	 	 
	EXHIBITS:
	 	 	 	 
	EXHIBIT A

	 	-
	 	Form of Assignment and Acceptance
	EXHIBIT B

	 	-
	 	Form of Security Agreement







iii











 





CREDIT AGREEMENT




     CREDIT AGREEMENT dated as of September 9, 2010, among: ALLEGHANY CORPORATION, a Delaware
corporation (the “Borrower”); the LENDERS party hereto; and U.S. BANK NATIONAL ASSOCIATION,
as Administrative Agent.



     The parties hereto agree as follows:



ARTICLE I




DEFINITIONS



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



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



     “Account” has the meaning set forth in the Security Agreement.



     “Adjusted LIBO Rate” means, with respect to any ABR Borrowing or Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next
1/10000 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory
Reserve Rate.



     “Administrative Agent” means U.S. Bank in its capacity as Administrative Agent for the
Lenders hereunder, and any successor financial institution in such capacity.



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



     “Advance Rate” means for any category of cash or obligation or investment specified
below in the column entitled “Cash and Eligible Securities” (other than cash, the “Eligible
Securities”), the percentage set forth opposite such category of cash or Eligible Securities
below in the column entitled “Advance Rate” and, in each case, subject (if applicable) to the
Moody’s Rating/S&P Rating and/or the then existing term to maturity criteria set forth therein:



	 	 	 	 	 
	Cash and Eligible Securities	 	Advance Rate
	Cash

	 	 	100	%
	 
	 	 	 	 
	U.S. Bank certificates of deposit, and
savings and money market accounts

	 	 	100	%
	 
	 	 	 	 
	Non-U.S. Bank certificates of deposit, and
savings, demand deposit and money market
accounts issued by U.S. FDIC-insured banks
rated Aa3/AA- or better

	 	 	95	%






 









 






	 	 	 	 	 
	Cash and Eligible Securities	 	Advance Rate
	U.S. government bills, notes and GSEs:
	 	 	 	 
	• Maturity < 5 years

	 	 	90	%
	• Maturity 5 — 10 years

	 	 	80	%
	• Maturity > 10 years

	 	 	70	%
	 
	 	 	 	 
	High Grade Corporate or Municipal Bonds
(AAA/Aaa or AA/Aa)
	 	 
	• Maturity < 5 years

	 	 	80	%
	• Maturity 5 — 10 years

	 	 	70	%
	• Maturity > 10 years

	 	 	60	%
	 
	 	 	 	 
	Ratings exclusive of any wrap
	 	 	 	 
	 
	 	 	 	 
	Listed Equities

	 	Subject to Reg U

compliance, 50%;
 provided if comprising 
more than 25%
of the
 Collateral, 40%.

	 
	 	 	 	 
	Non-agency structured securities

	 	 	0	%






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



     “Agreement” means this Credit Agreement, dated as of September 9, 2010, among the
Borrower, the Lenders party hereto and the Administrative Agent.



     “AIHL” means Alleghany Insurance Holdings LLC, a Delaware limited liability company.



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



     “Applicable Margin” means, for any day, a rate per annum equal to: (i) with respect
to any Eurodollar Loan made under Tranche A, the amount specified on Schedule 2.02(a) under the



- 2 -









 




column heading “Applicable Margin — Eurodollar Loans” based upon the Borrower’s Moody’s Rating
and S&P Rating, (ii) with respect to any Eurodollar Loan under Tranche B, the amount specified on
Schedule 2.02(b) under the column heading “Applicable Margin — Eurodollar Loans” based upon the
Borrower’s Moody’s Rating and S&P Rating, (iii) with respect to any ABR Loan made under Tranche A,
the amount specified on Schedule 2.02(a) under the column heading “Applicable Margin — ABR Loans”
based upon the Borrower’s Moody’s Rating and S&P Rating, and (iv) with respect to any ABR Loan made
under Tranche B, the amount specified on Schedule 2.02(b) under the column heading “Applicable
Margin — ABR Loans” based upon the Borrower’s Moody’s Rating and S&P Rating.




     “Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.



     “Approved Fund” means, with respect to any Lender, any fund that invests in commercial
loans and is managed or advised by an investment advisor affiliated with such Lender or by an
Affiliate of such investment advisor.



     “Assignment and Acceptance” means an assignment and acceptance entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in substantially the form of Exhibit A or substantially
any other form approved by the Administrative Agent and reasonably acceptable to the Borrower.



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



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



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



     “Borrowing Base” means at any time, and in respect of the Borrower with respect to
Tranche A, the aggregate amount of cash and Eligible Securities held in the Account at such time
multiplied in each case by the respective Advance Rates for cash and such Eligible Securities;
provided that no Eligible Securities or cash shall be included in the calculation of a
Borrowing Base unless (i) the Collateral Agent has a first priority perfected Lien on and security
interest in such Collateral pursuant to the Loan Documents and (ii) there shall exist no other
Liens on such Eligible Securities and cash; provided, further that (1) no Eligible
Security shall be included in the calculation of a Borrowing Base unless it is listed on a national
securities exchange or freely tradeable at readily established prices in over-the-counter
transactions, (2) other than cash, U.S. Government Bills, Notes and GSEs, no single issue or issuer
shall comprise more than 10% of a Borrowing Base, (3) U.S. Non-Financial Corporate Bonds shall
comprise no more than 20% of a Borrowing Base at any time and shall




- 3 -











 




be restricted to fixed coupon bonds with issue size above $250,000,000, (4) Non-U.S.
Government and Supranational Organization Obligations shall be excluded from the calculation of a
Borrowing Base unless such marketable securities are from the OECD country member states of United
Kingdom, France, Germany or Japan and (5) all maturities are calculated from the relevant date of
determination of a Borrowing Base.




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



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



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



     “Change in Control” means, after the date of this Agreement (a) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof) other than the current principal
stockholders of the Borrower identified in the Borrower’s proxy statement dated March 17, 2010, or
any of their respective children, spouses or issue thereof or any entity controlled or
substantially all of whose equity is beneficially owned by one or more of them as of the date of
this Agreement, of shares or other representative ownership interest representing more than 25% of
the aggregate ordinary voting power represented by the issued and outstanding capital stock or
other representative ownership interest of the Borrower, or (b) during any period of 25 consecutive
calendar months, commencing on the date of this Agreement, the ceasing of those individuals (the
“Continuing Directors”) who (i) were directors of the Borrower on the first day of each
such period or (ii) subsequently became directors of the Borrower and whose initial election or
initial nomination for election subsequent to that date was approved by a majority of the
Continuing Directors then on the board of directors of the Borrower, to constitute a majority of
the board of directors of the Borrower.



     “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender (or, for purposes of Section 2.13(b), by any lending office of such Lender
or by such Lender’s holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after the date of this
Agreement.



 - 4 - 









 





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



     “Collateral” has the meaning assigned to such term in the Security Agreement.



     “Collateral Agent” has the meaning assigned to such term in the Security Agreement.



     “Commitment” means, with respect to each Lender, its Tranche A Commitment or Tranche B
Commitment, as applicable.



     “Conduit Lender” means, for any Lender, any special purpose corporation organized and
administered by such Lender for the purpose of making loans, including the Loans hereunder
otherwise required to be made by such Lender, and designated by such Lender in a written
instrument, subject to the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed); provided, that the designation by any Lender of a Conduit Lender
shall not relieve the designating Lender of any of its obligations to fund a Loan under this
Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating
Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all
consents and waivers required or requested under this Agreement with respect to its Conduit Lender,
and provided, further, that no Conduit Lender shall (a) be entitled to receive any
greater amount pursuant to Section 2.13, 2.14, 2.15 or 9.03 than the designating Lender would have
been entitled to receive in respect of the Loans made by such Conduit Lender or (b) be deemed to
have any Commitment hereunder.



     “Consolidated Capital” of the Borrower at any date, means the sum of Consolidated Net
Worth plus Consolidated Total Indebtedness as of such date.



     “Consolidated Net Income” of the Borrower during any period, means the net income (or
loss), determined on a consolidated basis for such period taken as a single accounting period in
accordance with GAAP.



     “Consolidated Net Worth” of the Borrower at any date, means the consolidated
stockholders’ equity of the Borrower and its Subsidiaries as at such date determined in accordance
with GAAP.



     “Consolidated Total Indebtedness” of the Borrower at any date, means all items which
would, in conformity with GAAP, be classified as debt of the Borrower and its Subsidiaries at such
date.



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



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



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



 - 5 - 









 





     “Defaulting Lender” means any Lender, as reasonably determined by the Administrative
Agent, that has (i) failed to fund any portion of its Loans within three Business Days of the date
required to be funded by it hereunder and such Lender’s failure to fund is not based on such
Lender’s good faith determination that the conditions to funding such Loan under this Agreement
have not been satisfied as to which such Lender has notified the Administrative Agent of such
determination in writing, (ii) notified the Borrower, the Administrative Agent or any Lender in
writing that it does not intend to comply with any of its funding obligations under this Agreement
or has made a public statement to the effect that it does not intend to comply with its funding
obligations under this Agreement or generally under other agreements in which it commits to extend
credit, (iii) unless subject to a good faith dispute, failed, within three Business Days after
request by the Administrative Agent or the Borrower, to confirm that it will comply with the terms
of this Agreement relating to its obligations to fund prospective Loans, provided that any Lender
shall cease to be a Defaulting Lender under this clause (iii) upon receipt of such confirmation
from the Administrative Agent if such confirmation is received no later than seven Business Days
after such request, (iv) otherwise failed to pay over to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within three Business Days of the date
when due, unless the subject of a good faith dispute, or (v) (a) become or is insolvent or has a
parent company that has become or is insolvent or (b) become the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the
benefit of creditors or similar Person charged with reorganization or liquidation of its business
or custodian, appointed for it, or has taken any action in furtherance of, or indicating its
consent to, approval of or acquiescence in any such proceeding or appointment or has a parent
company that has become the subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business or custodian appointed for it, or
has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence
in any such proceeding or appointment. Notwithstanding anything in this definition to the contrary,
a Lender shall not be a “Defaulting Lender” solely as a result of the acquisition or maintenance of
an ownership interest in such Lender (or Person controlling such Lender) or the exercise of control
over such Lender (or any such controlling Person), by a governmental authority or instrumentality
thereof; it being understood that if a Lender has been turned over to the Federal Deposit Insurance
Corporation (or a similar regulatory entity) for the purpose of sale or liquidation it shall be a
Defaulting Lender.



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



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



     “Eligible Securities” has the meaning assigned to such term in the definition of
“Advance Rate”.



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



 - 6 - 









 





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



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



     “ERISA Event” means: (a) any “reportable event”, as defined in Section 4043 of ERISA
or the regulations issued thereunder with respect to a Plan (other than an event for which the
30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated
funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any Plan; (d) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any
of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from
any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any
notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of
ERISA.



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



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



     “Excluded Taxes” means, with respect to the Administrative Agent, the Collateral
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) income or franchise taxes imposed on (or measured by) its
net income by the United States of America, or by the jurisdiction under the laws of which such
recipient has a present or former connection (including the jurisdiction where such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located), (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the Borrower is located, (c)
in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.17(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office)
or is attributable to such Foreign Lender’s failure to comply with Section 2.15(e), 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 2.15(a), and (d) any Taxes imposed on any
“withholdable payment” payable to such recipient as a
result of the failure of such recipient to satisfy the applicable requirements as set forth in FATCA after December 31,
2012.



 - 7 - 









 





     “FATCA” shall mean Sections 1471 through 1474 of the Code and any regulations or
official interpretations thereof.



     “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/1000 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/1000 of 1%) of the quotations for such day for such transactions received
by U.S. Bank from three Federal funds brokers of recognized standing selected by it.



     “Financial Officer” means the chief financial officer, senior vice president,
principal accounting officer, treasurer or assistant treasurer of the Borrower.



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



     “GAAP” means generally accepted accounting principles in the United States as in
effect from time to time and set forth in any rule, regulation, opinion or pronouncement of the
Accounting Principles Board and the American Institute of Certified Public Accountants and any
rule, regulation, opinion or pronouncement of the Financial Accounting Standards Board (or agencies
with similar functions of comparable stature and authority within the U.S. accounting profession),
which are applicable to the circumstances as of the date of determination.



     “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, 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.



     “GSE” means debt securities issued by a government sponsored enterprise having the
full faith and credit of the United States of America.



     “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness



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or other obligation or (d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit in the ordinary course of
business.




     “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.



     “Hedging Agreement” means any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or currency exchange
rate or commodity price hedging arrangement.



     “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person upon which interest charges are
customarily paid (other than obligations in respect of which such interest charges are in the
nature of late charges), (d) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (e) all obligations of such
Person in respect of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all Indebtedness (which term,
for the purposes of this clause (f), shall mean the forms of indebtedness described in clauses (a)
through (e) and clauses (g) through (k)) of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed,
(g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of
such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise,
of such Person in respect of bankers’ acceptances, and (k) obligations in respect of Hedging
Agreements. The Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the extent such Person is
liable therefor as a result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such Person is not liable
therefor.



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



     “Interest Election Request” means a request by the Borrower to convert or continue a
Borrowing made by it in accordance with Section 2.06.



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



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     “Interest Period” means, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, three or six months thereafter, as the Borrower may elect;
provided, that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest
Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last Business Day of the last calendar month of such
Interest Period and (iii) any Interest Period that would otherwise end after the Maturity Date
shall not be available hereunder. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and, thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.



     “Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Acceptance, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Acceptance.



     “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate per annum appearing on the Screen at approximately 11:00 a.m., London time (or as soon
thereafter as practicable), two London Business Days prior to the commencement of such Interest
Period, as LIBOR with a maturity comparable to such Interest Period. In the event that the Screen
shall cease to report such LIBOR or, in the reasonable judgment of the Required Lenders, shall
cease to accurately reflect such LIBOR (as reported by any publicly available source of similar
market data selected by such Required Lenders), then the “LIBO Rate” with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate per annum at which dollar deposits
of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal
London office of U.S. Bank in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two London Business Days prior to the commencement of such
Interest Period.



     “LIBOR” means the rate at which deposits in dollars are offered to leading banks in
the London interbank market.



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



     “Listed Equities” means equity securities listed on the New York Stock Exchange,
American Stock Exchange or NASDAQ (National Market).



     “Loan Documents” means this Agreement, the Security Documents, the notes (if
requested pursuant to the terms hereunder), any fee letter executed or delivered in connection



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herewith or therewith, any other document or instrument signed by the Borrower that expressly
provides that it is a Loan Document as defined herein and any amendment, waiver, supplement or
other modification to any of the foregoing.




     “Loans” means the loans made under Tranche A or Tranche B, as applicable, by the
Lenders to the Borrower pursuant to this Agreement.



     “Margin Stock” means “margin stock” within the meaning of Regulations U and X.



     “Material Adverse Effect” means a material adverse effect on (a) the operations,
business, properties or condition (financial or otherwise) of the Borrower and its Subsidiaries
taken as a whole, or (b) the validity or enforceability of this Agreement or any other Loan
Document or the rights and remedies of the Administrative Agent, the Collateral Agent and the
Lenders hereunder or under any other Loan Document, including, without limitation, the Security
Documents.



     “Material Indebtedness” means Indebtedness (other than the Loans), or obligations in
respect of one or more Hedging Agreements, of the Borrower or any of its Subsidiaries in an
aggregate amount exceeding $25,000,000 (or its equivalent in any other currency). For purposes of
determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any
of its Subsidiaries in respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.



     “Material Subsidiary” means, at any time, any Subsidiary of the Borrower that as of
such time meets the definition of “significant subsidiary” contained in Regulation S-X of the
Securities and Exchange Commission. As of the date hereof, each Material Subsidiary is set forth on
Schedule 1 attached hereto; provided however, for avoidance of doubt such Schedule 1 shall be
deemed to include any other Subsidiary of the Borrower that is also a Material Subsidiary after the
date of this Agreement.



     “Maturity Date” means September 9, 2013.



     “Moody’s Rating” means, as at any date of determination and as to any Person or
security, the rating assigned by Moody’s Investors Service, Inc. (or any successor Person) (i) as
the unsecured long term issuer rating of such Person or (ii) to such security on such date.



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



     “Other Taxes” means any and all present or future stamp, documentary, license,
registration, recording, value added, or goods and services taxes or any other excise or property
taxes, charges or similar levies arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement other than Excluded Taxes.



     “Participant” has the meaning set forth in Section 9.04(e).



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



     “Permitted Encumbrances” means:



          (a) Liens imposed by law for taxes that are not yet due or are being contested in compliance
with Section 5.04;




          (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing obligations that are not
overdue by more than 60 days or are being contested in compliance with Section 5.04;




          (c) pledges and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or regulations;




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




          (e) easements, zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected property or interfere with
the ordinary conduct of business of the Borrower or any of its Subsidiaries;




          (f) customary rights of set-off, revocation, refund or charge-back under deposit agreements or
under the Uniform Commercial Code in favor of banks or other financial institutions where the
Borrower or any of its Subsidiaries maintains deposits in the ordinary course of business; and




          (g) Liens, other than Liens included in clauses (a) through (f) above, on any property or
asset of the Borrower, other than the Collateral, which secure Indebtedness as to which the
aggregate amount of the obligations or liabilities secured thereby does not exceed $100,000,000 at
any time;



provided that, for purposes of clauses (a) through (f) above (but not for purposes of
clause (g) above), the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




     “Permitted Indebtedness” means (a) the Loans; (b) certain unsecured Indebtedness of
the Borrower, incurred after the date of this Agreement, in an aggregate principal amount not to
exceed $300,000,000; (c) Indebtedness secured by a Lien permitted under clause (g) of the term
Permitted Encumbrances herein; and (d) other Indebtedness, that is either pari
passu in right of payment with, or subordinated in right of payment to, the Loans;
provided that, at the time of incurrence of the Permitted Indebtedness referenced in
clauses (b), (c) and (d) above, no Default shall have occurred and be continuing or would result
therefrom.



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



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



     “Prime Rate” means the rate of interest per annum publicly announced from time to time
by U.S. Bank as its prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective from and including the date such change is publicly announced as
being effective.



     “Register” has the meaning set forth in Section 9.04(c).



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



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



     “Screen” means the display page Reuters Screen LIBOR01 Page (or on any successor or
substitute page of such Service, as determined by the Administrative Agent).



     “SEC” means the Securities and Exchange Commission or any governmental authority
succeeding to its principal functions.



     “Security Agreement” means the Security Agreement to be entered into among the
Borrower and the Collateral Agent in substantially the form of Exhibit B.



     “Security Documents” means (i) the Security Agreement and (ii) each other document,
agreement, certificate and/or financing statement, executed, delivered, made or filed pursuant to
the terms of the documents specified in foregoing clause (i).



     “Shortfall Amount” has the meaning assigned to such term in Section 2.09(b).



     “Shortfall Event” has the meaning assigned to such term in Section 2.09(b).



     “S&P Rating” means, as at any date of determination and as to any Person or security,
the rating assigned by Standard & Poor’s Ratings Service (or any successor Person) (i) as the
unsecured long term issuer rating of such Person or (ii) to such security on such date.



     “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental



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




     “Subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with generally accepted
accounting principles as of such date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are, as of such date,
owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or
one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
Notwithstanding the foregoing, the definition of “Subsidiary” shall not include any entity
characterized as a “Consolidated Investment Fund”, defined as a segregated fund typically sponsored
and managed by the Borrower and its Subsidiaries, which the Borrower or such Subsidiary either:
(a) controls through a majority ownership of voting common stock and partnership interests; (b) is
the primary beneficiary of a Variable Interest Entity; or (c) is the general partner of a limited
partnership or the managing member of a limited liability company that is deemed to have control
through that role, but as to which there is no recourse to the Borrower or such Subsidiary and as
to which neither the Borrower nor any Subsidiary provides any guarantee or other credit support.
Types of Investment Funds include, but are not limited to, collateralized debt and loan obligation
funds, collateralized bond obligations funds, mezzanine financing funds, hedge funds, leveraged
mortgage-backed security funds, institutional stock and bond funds, commercial real estate
financing funds, private equity funds, and funds which invest in other investment funds.



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



     “Tranche” when used in reference to any Loan, Borrowing or Commitment, refers to
whether such Loan, Borrowing or Commitment is made under, or relates to, Tranche A or Tranche B.



     “Tranche A” means the secured credit facility evidenced by this Agreement and secured
by the Security Documents with a commitment amount not to exceed the Tranche A Commitment.



     “Tranche A Commitment” means, with respect to each Lender, the commitment of such
Lender to make Tranche A Loans hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender’s Credit Exposure hereunder, as such commitment may be



 - 14 - 









 




(a) reduced from time to time pursuant to Section 2.07, and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender’s Tranche A Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Tranche A Commitment, as
applicable. The initial aggregate amount of the Lenders’ Tranche A Commitments is $50,000,000.




     “Tranche A Loan Limit” means, at any time, the lesser of (a) the Tranche A Commitment
and (b) the Borrowing Base.



     “Tranche B” means the unsecured credit facility evidenced by this Agreement, with a
commitment amount not to exceed the Tranche B Commitment.



     “Tranche B Commitment” means, with respect to each Lender, the commitment of such
Lender to make Tranche B Loans hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender’s Credit Exposure hereunder, as such commitment may be (a) reduced from time
to time pursuant to Section 2.07, and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s
Tranche B Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Tranche B Commitment, as applicable. The initial
aggregate amount of the Lenders’ Tranche B Commitments is $50,000,000.



     “Transactions” means the execution and delivery by the Borrower of this Agreement, the
performance by the Borrower of its obligations hereunder, the borrowing by the Borrower of the
Loans made available hereunder and the other transactions contemplated hereby.



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



     “U.S. Bank” means U.S. Bank National Association.



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



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



     SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without



 - 15 - 









 




limitation”. The word “will” shall be construed to have the same meaning and effect as the
word “shall”. Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such Person’s successors and
assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof,
(d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer
to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
“asset” and “property” shall be construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.




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



ARTICLE II




THE CREDITS



     SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees to make Loans of each Tranche to the Borrower from time to time hereunder during the
Availability Period in a maximum principal amount not to exceed such Lender’s Commitment for such
Tranche. Notwithstanding anything to the contrary herein contained, no Lender shall be required to
advance any Borrowing hereunder if:



          (a) After giving effect to such Borrowing, (i) such Lender’s Credit Exposure for such Tranche
exceeds such Lender’s Commitment for such Tranche, or (ii) with respect to Tranche A, the aggregate
Credit Exposures for such Tranche exceed the Tranche A Loan Limit;




          (b) a Default has occurred and is continuing; or




          (c) the conditions of Section 4.02 hereof are not satisfied.




     SECTION 2.02. Loans and Borrowings.



          (a) Each Loan of any Tranche shall be made as part of a Borrowing consisting of Loans made by
the Lenders ratably in accordance with their respective Commitments for such



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Tranche. The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders
are several and not joint, and no Lender shall be responsible for any other Lender’s failure to
make Loans as required.




          (b) Subject to Section 2.12, each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request in accordance herewith. Each Lender at its option may
make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.




          (c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $1,000,000; provided that an
ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the total
Commitments with respect to a Tranche. Borrowings of more than one Type may be outstanding at the
same time; provided that there shall not at any time be more than a total of five Eurodollar
Borrowings outstanding per Tranche.




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




     SECTION 2.03. Requests for Borrowings. To request a Borrowing, the Borrower shall
notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of
the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 10:00 a.m., New York
City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower requesting the Borrowing. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.02:




          (i) the aggregate amount of the requested Borrowing;




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




          (iii) whether such Borrowing is to be made under Tranche A or Tranche B;




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




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




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               (vi) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.05.


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




     SECTION 2.04. Borrowing Base.



          (a) Prior to any Borrowing of a Tranche A Loan, and from time to time as it shall deem
appropriate (or if requested to do so by the Borrower or the Required Lenders), so long as Tranche
A Loans are outstanding, the Administrative Agent shall determine the Borrowing Base, and shall,
promptly following any such determination, promptly advise the Borrower and the Lenders thereof.
Any determination by the Administrative Agent of the Borrowing Base shall be conclusive absent
manifest error.




          (b) The Borrower may, from time to time, request the Collateral Agent to (i) sell any Eligible
Securities or purchase (using cash in the Account) any Eligible Security or (ii) release to it any
or all of the Collateral, in each case, so long as (A) no Default relating to the Tranche A Loans
is continuing and (B) no Shortfall Event would result from such sale, purchase or release.




     SECTION 2.05. Funding of Borrowings.



          (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds by noon (or, in the case of ABR Loans requested on
a same-day basis, 2:00 p.m.), New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will
make such Loans available to the Borrower by promptly crediting the amounts so received, in
immediately available funds, to an account of the Borrower maintained with the Administrative Agent
in New York City and designated by the Borrower in the applicable Borrowing Request.




          (b) Unless the Administrative Agent shall have received notice from a Lender, in the case of
an ABR Borrowing, on the date of the proposed Borrowing and, in the case of a Eurodollar Borrowing,
prior to the proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make available to the Borrower such
Borrowing. In such event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender agrees to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the Administrative Agent, at





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the greater of the Federal Funds Effective Rate and a rate reasonably determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation. If such
Lender has not paid such amount to the Administrative Agent within two Business Days following the
Agent’s demand therefor, then the Borrower agrees to pay to the Administrative Agent forthwith on
demand such corresponding amount in immediately available funds with interest thereon, for each day
from and including the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent at the interest rate applicable to ABR Loans. If the
Borrower and such Lender shall pay interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of
such interest paid by the Borrower for such period. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have failed to make such
payment to the Agent. If such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender’s Loan included in such Borrowing.




     SECTION 2.06. Interest Elections.



          (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate Borrowing.




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




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





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




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



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




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


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




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




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




     SECTION 2.07. Termination and Reduction of Commitments.



          (a) Unless previously terminated, the Commitments shall terminate on the Maturity Date.




          (b) The Borrower may at any time terminate, or from time to time reduce, the Commitments under
any Tranche; provided that (i) each reduction of the Commitments under any Tranche shall be in an
aggregate amount that is an integral multiple of $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Tranche A Commitment if, after giving effect to any concurrent prepayment
of the Loans of such Tranche in accordance with Section 2.09, the aggregate Credit Exposures of
such Tranche would exceed the Tranche A Loan Limit.




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






 - 20 - 









 








     SECTION 2.08. Repayment of Loans; Evidence of Debt.



          (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for
account of each Lender the then unpaid principal amount of each Loan made to the Borrower hereunder
by such Lender on the Maturity Date.




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




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




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




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




     SECTION 2.09. Optional and Mandatory Prepayment of Loans.



          (a) The Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, without premium or penalty (but subject to Section 2.14), subject,
to prior notice in accordance with this paragraph. The Borrower shall notify the Administrative
Agent by telephone (confirmed by telecopy) of any prepayment hereunder pursuant to this paragraph
(i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, or (ii) in the case of prepayment of an
ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify the name of the Borrower
effecting such prepayment, the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid;






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provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments
as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07. Promptly following receipt of any such
notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing pursuant to this paragraph shall be in an amount
that would be permitted in the case of an advance of a Borrowing of the same Type as provided in
Section 2.02.




          (b) If, on any date, the aggregate outstanding principal amount of the Tranche A Loans exceeds
the Borrowing Base on such date (“Shortfall Event”), the Borrower shall within one Business
Day of such date either (i) prepay the Tranche A Loans by an amount sufficient to cause the
aggregate outstanding principal amount of such Loans to be equal to or less than the Borrowing Base
(“Shortfall Amount”), or (ii) deliver to the Collateral Agent, to be held in accordance
with the Security Agreement, an amount of cash and/or Eligible Securities sufficient to cause the
Borrowing Base of the Borrower to be at least equal to the aggregate outstanding principal amount
of the Tranche A Loans. The Borrower may effect a prepayment of the Shortfall Amount pursuant to
clause (i) of the preceding sentence by effecting a Borrowing under Tranche B pursuant to (and
subject to) Section 2.03 hereof.




          (c) Each prepayment of a Borrowing pursuant to this Section 2.09 shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest
to the extent required by Section 2.11.




     SECTION 2.10. Fees.



          (a) The Borrower agrees to pay to the Administrative Agent for account of each Lender a
commitment fee, which shall accrue at a per annum rate equal to the amount specified under the
column labeled “Commitment Fee” on, (i) with respect to Tranche A, Schedule 2.02(a), and (ii) with
respect to Tranche B, Schedule 2.02(b), each Commitment Fee based upon the Borrower’s Moody’s
Rating and S&P Rating on the daily unused amount of the Commitments of such Lender of the relevant
Tranche during the period from and including the date hereof to but excluding the date on which
such Commitment terminates. Accrued commitment fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof; provided that any
commitment fees accruing after the date on which the Commitments terminate shall be payable on
demand. All commitment fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but excluding the last day).




          (b) The Borrower agrees to pay to the Administrative Agent, for its own account, (i) an annual
administrative fee equal to $5,000, which fee shall be payable (x) on the date of this Agreement
and (y) on each annual anniversary date of this Agreement, and (ii) any other fees payable in the
amounts and at the times separately agreed upon between the Borrower and the Administrative Agent.







 - 22 - 









 








          (c) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent for distribution, in the case of commitment fees, to the Lenders.




          (d) The Borrower agrees to pay or reimburse the Collateral Agent for such normal and customary
costs and expenses as are incurred or charged by the Collateral Agent in maintaining and
administering the Collateral and otherwise performing its obligations under the Loan Documents.
All fees payable to the Collateral Agent shall be paid on the dates due, in immediately available
funds, to the Collateral Agent.




          (e) Fees shall be deemed earned when paid and shall not be refundable under any circumstances.




     SECTION 2.11. Interest.



          (a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate
plus the Applicable Margin.




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




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




          (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and upon termination of the Commitments; provided that (i) interest accrued pursuant
to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Loan pursuant to Section 2.11(a) prior to
the end of the Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion.




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







 - 23 - 









 








     SECTION 2.12. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:



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




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



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




     SECTION 2.13. Increased Costs.



          (a) If any Change in Law shall:





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




               (ii) impose on any Lender or the London interbank market any other condition affecting
this Agreement or Eurodollar 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 Eurodollar Loan (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 otherwise), then 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; provided,
however, that the Borrower shall not be required to pay any Lender any amount required to
compensate such Lender for any additional cost resulting from any change in the rate or basis of
tax on the overall net income or profits of such Lender or such Lender’s lending office or
franchise taxes imposed in lieu thereof.




          (b) If any Lender determines that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s capital or on the capital of
such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made or
Commitments maintained to a level below that which such Lender or such






 - 24 - 









 







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) 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 paragraph (a) or (b) of this
Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within ten Business
Days after receipt thereof.




          (d) Failure or delay on the part of any Lender to demand compensation pursuant to 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 this Section for any increased
costs or reductions incurred more than 90 days 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; provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the 90-day period referred
to above shall be extended to include the period of retroactive effect thereof.




     SECTION 2.14. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default (excluding any prepayment pursuant to Section
2.05(b))), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar
Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.09(a) and is revoked in accordance therewith) or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.17, then, in any such event,
the Borrower shall compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss (other than loss of Applicable Margin), cost or
expense to any Lender shall be deemed to be in an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the principal amount of
such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of interest which
would accrue on such principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount
and period from other banks in the eurodollar market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within ten Business Days after receipt
thereof.



 - 25 - 









 





     SECTION 2.15. Taxes.



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




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




          (c) The Borrower shall indemnify the Administrative Agent and each Lender within 10 Business
Days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by the Administrative Agent or such Lender, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and,
other than any of the following resulting from the gross negligence or willful misconduct of the
Administrative Agent or such Lender, 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 such payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.




          (d) Within 30 days after any payment of Indemnified Taxes or Other Taxes by the Borrower to a
Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment reasonably satisfactory to
the Administrative Agent.




          (e) Each Foreign Lender shall deliver to the Borrower and the Administrative Agent, and each
such Lender that is not a party hereto on the date hereof shall deliver to the Borrower and the
Administrative Agent at the time or times prescribed by applicable law, two accurate and complete
original signed copies of Form W-8BEN (or any successor or substitute form or forms) of the
Internal Revenue Service of the United States (the “IRS”), two accurate and complete
original signed copies of IRS Form W-8ECI (or any successor or substitute form or forms), or such
other properly completed and executed documentation prescribed by applicable law, certifying, in
either such case, that such Lender is exempt or in the case of a change in applicable law,
regulation or treaty after the date such Person become a Lender, is partially exempt from United
States withholding tax on payments pursuant to this Agreement or two accurate and complete original
signed copies of IRS Form W8-IMY. As applicable, each Lender further agrees to deliver to the
Borrower and the Administrative Agent in writing from time to time, as reasonably requested by the
Borrower or the Administrative Agent or within 15 days






 - 26 - 









 







prior to the date upon which such form expires or otherwise becomes obsolete, and in any case
before or promptly upon the occurrence of any events requiring a change in the most recent form
previously delivered pursuant to this Section 2.15(e), two accurate and complete original signed
copies of IRS Form W-8BEN (or any successor or substitute form or forms required under the Code or
the applicable regulations promulgated thereunder) or, two accurate and complete original signed
copies of IRS Form W-8ECI (or any successor or substitute form or forms required under the Code or
the applicable regulations promulgated thereunder) certifying in either such case that such Lender
is exempt from or, in the case of a change in applicable law, regulation or treaty after the date
the Person became a Lender, is partially exempt United States withholding tax on payments pursuant
to this Agreement, or two accurate and complete original signed copies or IRS Form W-8IMY.




          (f) Each Lender that is a “United States person” as defined in Section 7701(a)(30) of the Code
(a “U.S. Lender”) agrees to complete and deliver to the Borrower and the Administrative
Agent a duly completed and executed copy of U.S. Internal Revenue Service Form W-9 (or any
successor form) establishing whether or not such Lender is subject to backup withholding or
information reporting requirements.




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




          (h) If a payment made to a Lender under any Loan Document would be subject to U.S. Federal
withholding tax imposed by FATCA if such Lender fails to comply with the applicable reporting
requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the code, as
applicable), such Lender shall deliver to the Borrower and the Administrative Agent (A) a
certification signed by the chief financial officer, principal accounting officer, treasurer or
controller, and (B) other documentation reasonably requested by the Borrower and the Administrative
Agent sufficient for the Administrative Agent and the Borrower to comply with their obligations
under FATCA and to determine whether Lender has complied with such applicable reporting
requirements.







 - 27 - 









 








     SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.



          (a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest or fees, or of amounts payable under Section 2.13, 2.14 or 2.15, or otherwise)
without set-off or counterclaim prior to noon, New York City time, on the date when due, in
immediately available funds. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent by wire transfer at the following account: Account #: 0005849-2160600, U.S.
Bank, Minneapolis, Minnesota, ABA # 091000022, Credit: Commercial Customer Service; provided
however, that payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any such payments received by
it for account of any other Person to the appropriate recipient promptly following receipt thereof.
If any payment hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in U.S. dollars.




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




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







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          (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for 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 with interest thereon, for each
day from and including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation.




          (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.05(b) or 2.16(d), then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for
account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.




     SECTION 2.17. Mitigation Obligations; Replacement of Lenders.



          (a) If any Lender requests compensation under Section 2.13, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for account of any Lender
pursuant to Section 2.15, then such Lender shall, upon the request of the Borrower, 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 2.13 or 2.15, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. Notwithstanding anything contained herein to the contrary, the
Borrower shall not be required to pay any costs and expenses incurred by any Lender in connection
with any such designation or assignment.




          (b) If any Lender (or any Participant in Loans made by such Lender) requests compensation
under Section 2.13, or if the Borrower is required to pay any additional amount to any Lender (or
any Participant in Loans made by such Lender) or any Governmental Authority for account of any
Lender (or any Participant in Loans made by such Lender) pursuant to Section 2.15, or is a
Defaulting Lender, then the Borrower may, at its sole expense and effort (subject to Borrower’s
rights as against a Defaulting Lender), upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding principal of its
Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from
the assignee or the Borrower, as applicable, and (iii) in the case of any such assignment resulting
from a claim for compensation under






 - 29 - 









 







Section 2.13 or payments required to be made pursuant to Section 2.15, such assignment will result in
a reduction in such compensation or payments. No assignment fee otherwise required by Section 9.04
shall be required to be paid in respect of any assignment pursuant to this Section 2.17(b). A
Lender shall not be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.




     SECTION 2.18. Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:



          (a) commitment fees shall cease to accrue on the unused portion of the Commitment of such
Defaulting Lender pursuant to Section 2.10(a); and




          (b) the Commitment and Credit Exposure of such Defaulting Lender shall not be included in
determining whether all Lenders or the Required Lenders have taken or may take any action hereunder
(including any consent to any amendment or waiver pursuant to Section 9.02), provided that any
waiver, amendment or modification requiring the consent of all Lenders or each affected Lender
which affects such Defaulting Lender in a manner more adversely than other affected Lenders shall
require the consent of such Defaulting Lender; provided further that the Commitment of such
Defaulting Lender may not be extended without the consent of such Defaulting Lender.




ARTICLE III




REPRESENTATIONS AND WARRANTIES



     The Borrower represents and warrants to the Lenders that:



     SECTION 3.01. Organization; Powers. The Borrower is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization and has all requisite
power and authority to carry on its business as now conducted. The Borrower has all governmental
licenses, authorizations, consents and approvals required to carry on its business as presently
conducted, except where the failure to hold or have such licenses, authorizations, consents and
approvals would not be reasonably expected, individually or in the aggregate, to result in a
Material Adverse Effect. The Borrower is qualified to do business in, and is in good standing in,
every jurisdiction where such qualification is required, except where the failure to be so
qualified and/or in good standing would not be reasonably expected to result in, individually or in
the aggregate, a Material Adverse Effect.



     SECTION 3.02. Authorization; Enforceability. The Borrower has all requisite corporate
power and authority to enter into this Agreement and to perform its obligations under this
Agreement and the other Loan Documents. The execution, delivery and performance of this Agreement
and the other Loan Documents by the Borrower have been duly authorized by all necessary corporate
action by the Borrower, and this Agreement and the other Loan Documents constitute legal, valid and
binding obligations of the Borrower, enforceable in accordance with their respective terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and subject to general principles
of equity, regardless of whether considered in a proceeding in equity or at law.



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     SECTION 3.03. Governmental Approvals; No Conflicts. The execution, delivery and
performance of this Agreement and the other Loan Documents by the Borrower (a) do not require, on
the part of Borrower, any consent or approval of, registration or filing with, or any other action
by, any Governmental Authority, except for such filings as are required to perfect Liens in favor
of the Collateral Agent, (b) will not violate any provision of the certificate of incorporation or
the by-laws of the Borrower or any provision of any law or regulation presently in effect or any
order of any Governmental Authority having applicability to the Borrower, (c) will not result in,
or require, the creation or imposition of any Lien on any of the Borrower’s properties or revenues
pursuant to any requirement of law (other than the Liens created by the Security Documents), and
(d) will not violate or result in a default under any indenture, agreement or other instrument to
which the Borrower is a party and which is binding upon the Borrower or its assets in any case in
which the consequences of such violation or default would reasonably be expected to have a Material
Adverse Effect. Without limiting the generality of the foregoing representation, the aggregate
outstanding amount of the Loans hereunder does not exceed any limitation established by the board
of directors of the Borrower on the aggregate amount of borrowings that may be made by the
Borrower.



     SECTION 3.04. Financial Condition; No Material Adverse Change.



          (a) The Borrower has heretofore furnished to each of the Lenders its annual audited financial
statement as at and for the year ended December 31, 2009 and its unaudited financial statement as
at and for the fiscal quarter ended June 30, 2010. The audited financial statements for the year
ended December 31, 2009 heretofore furnished to the Lenders present fairly, in all material
respects, the financial position and results of operations of the Borrower and its Subsidiaries, as
of the respective date thereof and for such year, in accordance with GAAP. The Borrower’s
unaudited balance sheet and statements of earnings and cash flows as of and for the fiscal quarter
ended June 30, 2010 heretofore furnished to the Lenders were prepared in accordance with GAAP
consistently applied throughout the periods involved and in a manner consistent with that employed
in the Borrower’s audited consolidated financial statements for the fiscal year ended December 31,
2009 except for the absence of notes required by GAAP and subject to normal recurring year-end
adjustments. Subject to the absence of notes required by GAAP and normal recurring year-end
adjustments, the Borrower’s unaudited interim financial statements as of June 30, 2010 present
fairly, in all material respects, the financial position and results of operations of the Borrower
and its Subsidiaries as of the dates and for the periods indicated therein except as otherwise set
forth therein.




          (b) Since June 30, 2010, there has occurred no event, development or circumstance that has had
a Material Adverse Effect.




     SECTION 3.05. Properties and Insurance.



          (a) The Borrower and each of its Material Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property, except for such failures to have
good title to, or valid leasehold interests in, such properties that, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse Effect.







 - 31 - 









 









          (b) The Borrower and each of its Material Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property material to its
business, and the use thereof by the Borrower and its Material Subsidiaries, to the knowledge of
the Borrower, does not infringe upon the rights of any other Person in a manner that, individually
or in the aggregate, would reasonably be expected to result in a Material Adverse Effect.




          (c) The Borrower and each of its Material Subsidiaries maintain adequate insurance coverage
with reputable insurance companies on all of its respective property in such amounts and against
such risks as are usually insured against in the same general area by companies engaged in the
similar line of business.




     SECTION 3.06. Litigation and Environmental Matters.



          (a) Except as specified on Schedule 3.06, there are no actions, suits, proceedings or
investigations by or before any arbitrator or Governmental Authority pending against, or to the
knowledge of the Borrower, threatened against or affecting, the Borrower or any of its Subsidiaries
which, if determined adversely to the Borrower or such Subsidiary, would reasonably be expected to
have a Material Adverse Effect.




          (b) Except with respect to any matters that, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or (ii) has failed to obtain,
maintain or comply with any permit, license or other approval required under any Environmental Law.




     SECTION 3.07. Compliance with Laws and Agreements. The Borrower and each of its
Material Subsidiaries is in compliance with all laws, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to be in compliance would not
reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor any of its
Material Subsidiaries is in breach or violation of any indenture, agreement or other instrument
binding upon it or its assets in any case in which the consequences of such violation or default
would reasonably be expected to have a Material Adverse Effect. As of the date of this Agreement,
no Default has occurred and is continuing.



     SECTION 3.08. Investment Company Status. The Borrower is not an “investment company”
within the meaning of the Investment Company Act of 1940.



     SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has timely filed (or
joined in filing) all federal income tax returns and all other material tax returns required to
have been filed and has paid or caused to be paid all Taxes required to have been paid by it,
except Taxes that are being contested in good faith by appropriate proceedings and for which
reserves in accordance with GAAP have been provided on the books of the Borrower.



     SECTION 3.10. ERISA. Each Plan is in compliance in all material respects with, and
has been administered in compliance in all material respects with, the applicable provisions of



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ERISA and the Code. Neither Borrower nor any of its Subsidiaries maintains a Multiemployer
Plan. No ERISA Event (i) has occurred within the five year period prior to the date of this
Agreement, (ii) has occurred and is continuing, or (iii) to the knowledge of the Borrower, is
reasonably expected to occur with respect to any Plan, in each case under clauses (i) through (iii)
above except to the extent the same, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.




     SECTION 3.11. Disclosure. Subject to the following sentence, none of the reports,
financial statements, certificates or other information furnished by or on behalf of the Borrower
to the Administrative Agent, the Collateral Agent or any Lender in connection with the negotiation
of this Agreement and the other Loan Documents or delivered hereunder (as modified or supplemented
by other information so furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading. With respect to reports, certificates or other information
furnished by or on behalf of the Borrower on or prior to the date of this Agreement and consisting
of projections or forecasts of future results, the Borrower represents only that such information
has been prepared in good faith and based on good faith estimates and assumptions of the management
of the Borrower, and that at the time such projections and forecasts were delivered, the Borrower
had no reason to believe that such projections or forecasts were not reasonable (it being
understood that such projections or forecasts are not a guaranty of future performance and that
actual results during the period or periods covered by such projections or forecasts may materially
differ from the projected results therein).



     SECTION 3.12. Margin Stock. No part of the proceeds from any Loan hereunder will be
used for any purpose which violates, or which would be inconsistent with, the provisions of
Regulations T, U and X as now and from time to time in effect.



     SECTION 3.13. Subsidiaries. Each of the Borrower’s Material Subsidiaries is an
organization duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and has all requisite power and authority to carry on its business as
now conducted. Each of the Borrower’s Subsidiaries holds all governmental licenses,
authorizations, consents and approvals required to carry on its business as now conducted, except
where the failure to hold such licenses, authorizations, consents and approvals would not
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.



     SECTION 3.14. Regulatory Restrictions on Borrowing. The Borrower is not subject to
any regulatory scheme not applicable to corporations generally which restricts its ability to incur
debt or would render the Loans void or voidable.



     SECTION 3.15. Priority of Liens. The Security Documents create, as security for the
Tranche A Loans and any obligations related thereto, valid and enforceable, exclusive, first
priority security interests in and Liens on all of the Collateral in which Borrower has any right,
title or interest, in favor of the Collateral Agent for the ratable benefit of the Lenders, subject
to no other Liens, except to the extent permitted under Section 6.01 hereunder.



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     SECTION 3.16. Solvent. After giving effect to the Loans advanced hereunder, the
Borrower is solvent.



     SECTION 3.17. Material Agreements. Each of the Borrower and its Subsidiaries are in
compliance with all of the material agreements to which it is a party, and no default or event of
default exists under any material agreement, except where such failure to comply or default does
not have, and would not reasonably be expected to have, a Material Adverse Effect.



ARTICLE IV




CONDITIONS



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



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




          (b) The Administrative Agent shall have received an opinion, addressed to it and the Lenders
and dated the Effective Date, of Christopher K. Dalrymple, General Counsel of the Borrower,
covering such matters relating to the Borrower, this Agreement, the other Loan Documents and the
Transactions as the Required Lenders shall reasonably request.




          (c) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent, its counsel or any Lender may reasonably request relating to the
organization, existence and good standing of the Borrower, the authorization of the Transactions
and any other legal matters relating to the Borrower, this Agreement or the Transactions, all the
corporate documents and information required by applicable “Know Your Customer” and anti-money
laundering rules and regulations including the Act (as defined in Section 9.14), all in form and
substance satisfactory to the Administrative Agent and its counsel, and the Borrower has requested
and is in process of establishing the Account with U.S. Bank.




          (d) The Administrative Agent and the Collateral Agent shall have received all fees (including
any up-front fees as separately agreed) and other amounts due and payable on or prior to the
Effective Date, including, to the extent invoiced at least one Business Day prior, reimbursement or
payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.




          (e) All governmental and third party approvals necessary in connection with the financing
contemplated hereby and the continuing operations of the Borrower and its Subsidiaries shall have
been obtained and are in full force and effect.



The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. For avoidance of doubt, the Tranches shall close





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simultaneously. Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is satisfied (or
waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on September 10,
2010 (and, in the event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).




     SECTION 4.02. Each Loan. The obligation of each Lender to make a Loan under either
Tranche on the occasion of any Borrowing is subject to the satisfaction of the following
conditions:



          (a) The representations and warranties of the Borrower set forth in (i) this Agreement and
(ii) in the case of a Borrowing under Tranche A, Section 4 of the Security Agreement, in each case
shall be true and correct on and as of the date of such Borrowing in all material respects (except
to the extent qualified by materiality and except to the extent any such representation or warranty
is expressly stated to have been made as of a specific date).




          (b) In the case of Tranche A, the fact that, (i) immediately after such Borrowing and after
application of the proceeds thereof, the aggregate principal amount of the Tranche A Loans shall
not exceed the Tranche A Loan Amount, and (ii) the Collateral Agent shall have received all
required Collateral, and evidence that all Liens and security interests securing Tranche A have
been properly documented, recorded and perfected, so that the Collateral Agent has a first priority
perfected Lien in and to the Collateral for the ratable benefit of the Lenders, and all documents
and instruments, including Uniform Commercial Code financing statements, required by law or
reasonably requested by the Collateral Agent to be filed, registered or recorded to create the
Liens intended to be created by the Security Agreement shall have been filed, registered or
recorded or delivered to the Collateral Agent for filing, registration or recording.




          (c) The fact that since the date of this Agreement, no event, development or circumstance
having a Material Adverse Effect shall have occurred and be continuing.




          (d) At the time of and immediately after giving effect to such Borrowing, no Default shall
have occurred and be continuing.



Each Borrowing shall be deemed to constitute a representation and warranty by the Borrower on the
date thereof as to the matters specified in paragraphs (a) through and including (d) of this
Section.




ARTICLE V




AFFIRMATIVE COVENANTS



     Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees and other amounts payable hereunder shall have been paid in full, the
Borrower covenants and agrees with the Lenders that:



     SECTION 5.01. Financial Statements and Other Information. The Borrower will furnish
to the Administrative Agent and each Lender:



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          (a) as soon as available and in any event within 90 days after the end of each fiscal year of
the Borrower, (i) the annual financial statements with respect to such fiscal year of the Borrower,
including all notes thereto, which statements shall include (x) a consolidated balance sheet, a
consolidated statement of earnings and comprehensive income, a consolidated statement of changes in
stockholders equity and a consolidated statement of cash flows, in each case for the Borrower and
its Subsidiaries, and (y) for the Borrower, an unconsolidated and condensed balance sheet, a
condensed statement of earnings and a condensed statement of cash flows, all of such financial
statements referred to in clause (x) and (y) setting forth in comparative form the corresponding
figures from the previous fiscal year, all prepared in conformity with GAAP and accompanied by an
unqualified report and opinion of a firm of independent accountants of national standing and
reputation (without a “going concern” or like qualification or exception), which shall state that
such financial statements, in the opinion of such accountants, present fairly, in all material
respects, the information set forth therein, and a statement from such independent accountants that
no Default has occurred or is continuing, and (ii) for AIHL, an unaudited unconsolidated and
condensed balance sheet and profit and loss statement;




          (b) as soon as available and in any event within 180 days after the end of each fiscal year of
AIHL, the annual financial statements with respect to such fiscal year of AIHL, including all notes
thereto, which statements shall include a consolidated balance sheet, a consolidated statement of
earnings and comprehensive income, a consolidated statement of changes in member’s equity and a
consolidated statement of cash flows, in each case for AIHL and its Subsidiaries, setting forth in
comparative form the corresponding figures from the previous fiscal year, all prepared in
conformity with GAAP and accompanied by an unqualified report and opinion of a firm of independent
accountants of national standing and reputation (without a “going concern” or like qualification or
exception), which shall state that such financial statements, in the opinion of such accountants,
present fairly, in all material respects, the information set forth therein;




          (c) as soon as available and in any event within 45 days after the end of each of the first
three quarterly fiscal periods of each fiscal year of the Borrower and its Subsidiaries, (i) the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such
quarter, (ii) the unaudited, unconsolidated and condensed balance sheet and profit and loss
statement of each of the Borrower and AIHL, as of the end of such quarter, and (iii) the related
unaudited statements of earnings and comprehensive income of the Borrower on a consolidated basis
for such quarter and cash flows of the Borrower on a consolidated basis for such quarter;




          (d) simultaneously with the delivery of the items set forth in paragraphs (a) and (c) of this
Section, an investment schedule substantially in the form attached hereto as Schedule 5.01(d),
providing in reasonable detail the investments for each of the Borrower and AIHL;




          (e) promptly after the Borrower or any ERISA Affiliate knows that any ERISA Event has occurred
with respect to which the liability or potential liability of the Borrower or any of its ERISA
Affiliates would have a Material Adverse Effect, a statement of a Financial Officer describing such
ERISA Event and the action, if any, which the Borrower or such ERISA Affiliate proposes to take
with respect thereto;







- 36 -









 








          (f) promptly after the receipt thereof by the Borrower or any ERISA Affiliate, copies of each
notice from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to
administer any Plan where such action would have a Material Adverse Effect;




          (g) concurrently with any delivery of financial statements under clauses (a), (b) and (c)
above, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a Default
has occurred and, if a Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Section 6.09 and (iii) stating whether any material change in GAAP or
in the application thereof has occurred since the date of the financial statements referred to in
Sections 3.04(a) or 3.04(b) and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;




          (h) (i) simultaneously with delivery to the Borrower’s holders of any class of its debt
securities or public equity securities, copies of all other financial statements, proxy statements,
reports, notices, and other matters at any time or from time to time prepared by the Borrower, and
(ii) upon the filing thereof, copies of all registrations, statements, reports and notices and
other filings that the Borrower files with the SEC; and




          (i) promptly following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Borrower or any of its Subsidiaries, or compliance
with the terms of this Agreement or any other Loan Document, as the Administrative Agent or any
Lender may reasonably request.



In lieu of furnishing the Lenders the items referred to in clauses (a), (c), and (g) above, the
Borrower may make available such items on the Borrower’s website at www.alleghany.com or at
such other website as notified to the Administrative Agent and the Lenders, which shall be deemed
to have satisfied the requirement of delivery of such items in accordance with this Section upon
delivery to the Administrative Agent of a notice (x) that the particular item is available and (y)
identifying the internet link to such item.




     SECTION 5.02. Notices of Defaults. Promptly after obtaining actual knowledge of the
occurrence of a Default, the Borrower will furnish to the Administrative Agent and each Lender
prompt written notice of such occurrence. Each such notice shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the details of the
event or development requiring such notice and any action taken or proposed to be taken with
respect thereto.



     SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
of its Material Subsidiaries to, do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business, unless the failure to so preserve or renew such
rights, licenses, permits, privileges or franchises would not reasonably be expected to result in a
Material Adverse Effect; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation, dissolution or other transaction permitted under Sections 6.03, 6.05 or
6.06.



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     SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay its material tax liabilities and all lawful claims of any kind that, if
unpaid, might by law become a Lien upon a material portion of the property of the Borrower or any
of its Material Subsidiaries, in each case before the same shall become delinquent or in default,
except that the foregoing items need not be paid if the validity or amount thereof is being
contested in good faith by appropriate proceedings and the Borrower or such Material Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance with GAAP.



     SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Material Subsidiaries to, (a) keep and maintain all property material to the conduct of
its business in good working order and condition, except to the extent failure to do so would not
reasonably be expected to have a Material Adverse Effect, and (b) maintain, with financially sound
and reputable insurance companies (or through a self-insurance program), insurance in such amounts
and against such risks as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.



     SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will cause
each of its Material Subsidiaries to, keep proper books of record and account in which full, true
and correct, in all material respects, entries are made of all dealings and transactions in
relation to its business and activities. The Borrower will, and will cause each of its Material
Subsidiaries to, permit any representative designated by the Administrative Agent (and, if a
Default shall have occurred and be continuing, any representatives designated by any Lender), upon
reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its
books and records, and to discuss its affairs, finances and condition with its officers and, with
an authorized officer of the Borrower participating in such discussions, the Borrower’s independent
accountants, all at such reasonable times and as often as reasonably requested. So long as no
Event of Default exists, the expenses of the Administrative Agent or Lenders for such visits,
inspections and examinations shall be at the expense of the Administrative Agent and the Lenders,
but any such visits, inspections and examinations made while any Event of Default is continuing
shall be at the sole expense of the Borrower.



     SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse Effect.



     SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used only for
working capital and general corporate purposes (including permitted acquisitions and including
repurchases of Borrower’s own securities) of the Borrower in each case in compliance in all
material respects with all applicable legal and regulatory requirements, including Regulations U
and X; and provided that neither the Administrative Agent nor any Lender shall have any
responsibility as to the use of any such proceeds. If the proceeds of any Loan shall be used for a
purpose which might cause such Loan to be considered a “purpose credit” within the meaning of
Regulation U, prior to such applicable Borrowing, the Borrower shall furnish to each Lender a Form
U-1 in compliance with the requirements of Regulation U.



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     SECTION 5.09. Account. The Borrower shall use commercially reasonably efforts to
establish the Account and in that respect shall furnish to the Administrative Agent all reasonably
requested documentation and information. Notwithstanding anything contained herein to the
contrary, the Borrower shall have no obligation to fund the Account with Collateral unless and
until the Borrower requests a Borrowing under Tranche A.



ARTICLE VI




NEGATIVE COVENANTS



     Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees and other amounts payable hereunder have been paid in full, the Borrower
covenants and agrees with the Lenders that:



     SECTION 6.01. Liens.



          (a) The Borrower will not create, incur, assume or permit to exist any Lien on any property or
asset now owned or hereafter acquired by it, except:





          (i) Liens created pursuant to the Security Documents; and




          (ii) Permitted Encumbrances.



          (b) The Borrower will not permit AIHL to create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by AIHL, except, pledges of cash and cash
equivalents in respect of any equity swap contract.




          (c) The Borrower will not, and will not permit any of its Material Subsidiaries to, at any
time, create, assume or suffer to exist any Lien upon or with respect to any capital stock or
ownership interest of any of its Material Subsidiaries.




     SECTION 6.02. Indebtedness.



          (a) The Borrower will not create, incur, assume, guarantee or otherwise become or remain
liable with respect to, any Indebtedness except for Permitted Indebtedness.




          (b) The Borrower will not permit AIHL to create, incur, assume, guarantee or otherwise become
or remain liable with respect to, any Indebtedness except for (i) Indebtedness incurred in
connection with any equity swap contract, and (ii) Indebtedness due to the Borrower and the
Borrower’s Subsidiaries.




     SECTION 6.03. Merger. The Borrower will not, and the Borrower will not permit any
Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with it or such Subsidiary, or liquidate or dissolve itself, except that:




          (i) any of the Borrower’s Subsidiaries may merge or consolidate with or into the
Borrower or any wholly owned Subsidiary of the Borrower; and



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          (ii) without prejudice to Section 6.03(i), the Borrower or any of its Subsidiaries may
merge or consolidate with or into any other Person so long as with respect to such merger or
consolidation, (x) in the case of the Borrower (including, without limitation, any merger
with any of its Subsidiaries), the Borrower is the surviving corporation and (y) in the case
of such Subsidiary, the surviving corporation is a Subsidiary of the Borrower.


provided, in each of the foregoing cases, that no Default shall have occurred and be
continuing at the time of such merger, consolidation, liquidation or dissolution, or shall occur as
a result thereof.




     SECTION 6.04. Change of Business.



          (a) The Borrower will not, and will not permit any of its Material Subsidiaries to, engage in
any business activity if, by engaging in such activity, the primary business of the Borrower and
its Material Subsidiaries taken as a whole would not be the providing of insurance and financial
services.




          (b) The Borrower will not, and will not permit any of its Material Subsidiaries to, acquire
all or substantially all of the ownership interests or assets of another Person, if as a result of
such acquisition, (i) the primary business of the Borrower and its Material Subsidiaries taken as a
whole would not be the providing of insurance and financial services, and (ii) a Default shall have
occurred and be continuing or would result therefrom.




     SECTION 6.05. Sale of Assets. The Borrower will not, and will not permit AIHL to,
sell, transfer, lease or otherwise dispose of (whether in one transaction or a series of
transactions) all or substantially all of its assets.



     SECTION 6.06. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any material property or
assets to, or purchase, lease or otherwise acquire any material property or assets from, or
otherwise engage in any other material transactions with, any of its Affiliates, except (a) in the
ordinary course of business at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than those that would reasonably be expected to be obtained in a
comparable arm’s-length transaction with an unrelated third party, and (b) transactions between or
among the Borrower and its wholly-owned Subsidiaries which do not involve any other Affiliate.



     SECTION 6.07. Restricted Payments. The Borrower will not, and will not permit any of
its Material Subsidiaries to, declare or pay any dividend (other than dividends payable solely in
common stock of the Person making such dividend) on, or make any payment on account of, or set
apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any stock of the Borrower or any of its Material Subsidiaries,
except with respect to transaction permitted under Section 6.03 (collectively, “Restricted
Payments”), except that (a) any Subsidiary may make Restricted Payments to the Borrower or any
of its Subsidiaries, (b) any non-wholly owned Material Subsidiary may make pro-rata distributions
to its shareholders and (c) so long as no Default shall have occurred and be



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continuing or would result therefrom, the Borrower and any Material Subsidiary may declare
(and thereafter make) Restricted Payments.



     SECTION 6.08. Clauses Restricting Subsidiary Distributions. None of the Borrower’s
Material Subsidiaries will enter into or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of any Material Subsidiary of the Borrower to (a) make
Restricted Payments in respect of any stock of such Material Subsidiary held by, or pay any
Indebtedness owed to, the Borrower or any other Material Subsidiary of the Borrower, (b) make loans
or advances to, or other investments in, the Borrower or any other Subsidiary of the Borrower or
(c) transfer any of its assets to the Borrower or any other Subsidiary of the Borrower, except for
such encumbrances or restrictions existing under or by reason of any restrictions existing under
the Loan Documents.



     SECTION 6.09. Financial Covenants.



          (a) Leverage Ratio. At the end of each fiscal quarter of the Borrower, the Borrower will not
permit the ratio of Consolidated Total Indebtedness to Consolidated Capital to be greater than .25
to 1.0.




          (b) Minimum Net Worth. At all times, the Borrower will not permit its Consolidated Net Worth
to be less than the sum of (i) $2,035,568,250 plus (ii) 50% of the cumulative Consolidated
Net Income earned in each fiscal quarter thereafter (if positive) commencing on September 30, 2010.




ARTICLE VII




EVENTS OF DEFAULT



     If any of the following events (“Events of Default”) shall occur:



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




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




          (c) any representation or warranty made or deemed made by or on behalf of the Borrower or any
of its Subsidiaries in or in connection with this Agreement, any other Loan Document or any
amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in connection with this
Agreement, any other Loan Document or any amendment or modification hereof or thereof or waiver
hereunder or thereunder, shall prove to have been incorrect in any respect (or in any material
respect if such representation, warranty, report, certificate, financial statement or other
document is not by its terms already qualified as to materiality) when made or deemed made;







- 41 -









 








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




          (e) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article)
or any other Loan Document, and such failure shall continue unremedied for a period of 30 days
after the earlier of (i) notice thereof from the Administrative Agent to the Borrower (which notice
will be given at the request of any Lender) and (ii) actual knowledge of the Borrower of such
default;




          (f) (i) the Borrower or any of its Subsidiaries shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material Indebtedness, when and
as the same shall become due and payable (after giving effect to any applicable notice and grace
periods); or (ii) any event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (after giving effect to any
applicable notice and grace periods) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (f) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or assets securing such
Indebtedness;




          (g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any of its
Material Subsidiaries or its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any or its Material Subsidiaries or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue undismissed for 45 days
or an order or decree approving or ordering any of the foregoing shall be entered;




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




          (i) one or more judgments for the payment of money in an aggregate amount in excess of
$25,000,000 (or its equivalent in any other currency) shall be rendered against the Borrower, any
Subsidiary of the Borrower or any combination thereof and the same shall remain


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undischarged for a period of 30 consecutive days during which execution shall not be
effectively stayed or more than 60 days from the last day that execution of such judgment shall
have been stayed during an appeal from such judgment; provided that no Event of Default
shall exist if payment of the judgments are covered in full by insurance of a nationally recognized
and creditworthy insurer and such insurer has affirmed such coverage;




          (j) the Borrower or any ERISA Affiliate shall fail to pay when due any material amount or
amounts that it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA;
or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against the Borrower
or any ERISA Affiliate to enforce Section 515 of ERISA; or any ERISA Event shall occur which would
reasonably be expected to have a Material Adverse Effect; or the Borrower or any ERISA Affiliate
shall partially or completely withdraw from any Multiemployer Plan; or any Multiemployer Plan to
which the Borrower or any ERISA Affiliate becomes obligated to make or accrue a contribution is
placed in reorganization or terminates;




          (k) any Lien created by any of the Security Documents shall at any time fail to constitute an
enforceable first priority perfected Lien on all of the Collateral purported to be encumbered
thereby; or




          (l) a Change in Control shall have occurred;



then, and in every such event (other than an event with respect to the Borrower described in clause
(g) or (h) of this Article), and at any time thereafter during the continuance of such event, (A)
the Administrative Agent shall at the request of the Required Lenders, by notice to the Borrower,
terminate the Commitments, and thereupon the Commitments shall terminate immediately, (B) the
Administrative Agent shall at the request, or may with the consent, of the Lenders holding more
than 50% of the aggregate outstanding principal amount of the Loans shall, by notice to the
Borrower, declare the Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower, and (C) the Administrative Agent shall at
the request, or may with the consent, of the Required Lenders, with respect to Tranche A, the
Administrative Agent may, or upon the request of the Required Lenders, with respect to Tranche A,
the Administrative Agent shall direct the Collateral Agent to exercise in respect of the
Collateral, the rights and remedies under the Security Documents; and in case of any event with
respect to the Borrower described in clause (g) or (h) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower. For avoidance of doubt, the Collateral does
not secure Tranche B and the rights and remedies under the Security Documents shall not be
applicable to Tranche B. Notwithstanding anything contained herein to the contrary, no sums
realized in connection with the Collateral Agent’s and Lenders’ enforcement of their respective
rights and remedies with respect to the Collateral shall be applied in payment of any obligation
due under Tranche B.







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ARTICLE VIII




AGENTS



     SECTION 8.01. Appointment.



          (a) Each of the Lenders hereby appoints U.S. Bank as its agent to be the Administrative Agent
under this Agreement and the other Loan Documents and to be the Collateral Agent under the Security
Agreement and authorizes the Administrative Agent and the Collateral Agent as the case may be, in
such capacities, to take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent and the Collateral Agent by the terms hereof and under the other Loan
Documents, together with such actions and powers as are reasonably incidental thereto. The
Administrative Agent and each Lender understand and agree that all Liens created by the Security
Agreement on the Collateral have been created in favor of the Collateral Agent, for the benefit of
the Administrative Agent and the Lenders, that all rights to take remedial action with respect to
the Collateral under the Security Agreement have been granted to the Collateral Agent and that
neither the Administrative Agent nor any Lender has the right to take any such remedial action with
respect to the Collateral other than through the Collateral Agent.




          (b) 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 such Person and its Affiliates may accept deposits from, lend
money to and generally engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.




          (c) Neither the Administrative Agent nor the Collateral Agent shall have any duties or
obligations except those expressly set forth herein or in the other Loan Documents. Without
limiting the generality of the foregoing (i) neither the Administrative Agent nor the Collateral
Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default
has occurred and is continuing, (ii) neither the Administrative Agent nor the Collateral Agent
shall 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 or the Collateral Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (iii) except as expressly set forth herein, neither
the Administrative Agent nor the Collateral Agent shall have any duty to disclose, and shall be
liable for the failure to disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or
Collateral Agent or any of their respective Affiliates in any capacity. Neither the Administrative
Agent nor the Collateral Agent shall be liable for any action taken or not taken by it with the
consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or willful misconduct. Neither the Administrative Agent nor
the Collateral Agent shall be deemed to have knowledge of any Default (other than default in the
payment of interest on or principal of the Loans) unless and


- 44 -









 







until written notice thereof is given to the Administrative Agent or the Collateral Agent by
the Borrower or a Lender, and neither the Administrative Agent nor the Collateral Agent shall be
responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or
representation made by any other Person in or in connection with this Agreement, (B) the contents
of any certificate, report or other document delivered hereunder or in connection herewith, (C) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein, (D) the validity, enforceability, effectiveness or genuineness of this Agreement or
any other agreement, instrument or document, or (E) 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 or the Collateral Agent and the conformity thereof to drafts
or forms furnished to the Lenders.




          (d) Each of the Administrative Agent and the Collateral 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 reasonably believed by it to be genuine and to
have been signed or sent by the proper Person. Each of the Administrative Agent and the Collateral
Agent also may rely upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying thereon. Each of the
Administrative Agent and the Collateral 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.




          (e) The Administrative Agent and the Collateral Agent may each perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent or the Collateral Agent. The Administrative Agent and the Collateral Agent
and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and the
Collateral 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.




          (f) Subject to the appointment and acceptance of a successor Administrative Agent or
Collateral Agent as provided in this paragraph, each of the Administrative Agent and the Collateral
Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation,
the Required Lenders shall have the right, with the consent of the Borrower (which consent shall
not be unreasonably withheld and shall not be required if an Event of Default has occurred and is
continuing), to appoint a successor. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Administrative
Agent or Collateral Agent, as applicable, gives notice of its resignation, then the retiring
Administrative Agent or Collateral Agent, as applicable may, on behalf of the Lenders, and with the
consent of the Borrower (which consent shall not be unreasonably withheld and shall not be required
if an Event of Default has occurred and is continuing), appoint a successor Administrative Agent or
Collateral Agent, as applicable, which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank, in each case having a combined capital and surplus of at least
$500,000,000.


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Upon the
acceptance of its appointment as Administrative Agent or Collateral Agent, as applicable, hereunder by a
successor, such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent or Collateral Agent and the retiring
Administrative Agent or Collateral Agent shall be discharged from its duties and obligations
hereunder and under the Loan Documents. The fees payable by the Borrower to a successor
Administrative Agent or Collateral Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s
resignation or Collateral Agent’s resignation hereunder, the provisions of this Section 8.01 and
Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent or
Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as Administrative Agent or
Collateral Agent.




          (g) Each Lender agrees to indemnify Administrative Agent in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do
so), ratably according to their respective Applicable Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in
accordance with such Applicable Percentages immediately prior to such date), from and against any
and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time (whether before or after the
payment of the Loans) be imposed on, incurred by or asserted against the Administrative Agent in
any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under or
in connection with any of the foregoing; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the Administrative Agent’s
gross negligence or willful misconduct. The agreements in this Section shall survive the payment
of the Loans and all other amounts payable hereunder.




          (h) Each Lender agrees to indemnify the Collateral Agent in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do
so), ratably according to their respective Applicable Percentages (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with such percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before
or after the payment of the Loans) be imposed on, incurred by or asserted against the Collateral
Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by the Collateral Agent
under or in connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that are found by a final and
nonappealable decision of a court of competent


- 46 -









 







jurisdiction to have resulted from the Collateral Agent’s gross negligence or willful
misconduct. The agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder.




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




ARTICLE IX




MISCELLANEOUS



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




          (i) if to the Borrower, to it at 7 Times Square Tower, New York, New York 10036,
Attention of Roger B. Gorham, Senior Vice President — Finance and Investments (Telecopy No.
(212) 759-8149), with a copy to the Borrower, 7 Times Square Tower, New York, New York
10036, Attention of Christopher Dalrymple, General Counsel (Telecopy No. (212) 759-3295);




          (ii) if to the Administrative Agent, to U.S. Bank National Association, 461 Fifth
Avenue, 7th Floor, New York, New York, 10017, Attention of Dennis Cogan, Senior Vice
President (Telecopy No. (646) 935-4533), with a copy to U.S. Bank National Association, 461
Fifth Avenue, 7th Floor, New York, New York, 10017, Attention of Inna Kotsubey, Vice
President — Portfolio Manager (Telecopy No. (646) 935-4533); and




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


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




          (b) The Borrower acknowledges and agrees that (I) the Administrative Agent may make any
material delivered by the Borrower, as well as any amendments, waivers, consents, and other written
information, documents, instruments and other materials relating to the Borrower, any of its
Subsidiaries, or any other materials or matters relating to this Agreement or any of the
transactions contemplated hereby (collectively, the “Communications”), available


- 47 -









 







to the Lenders by posting such notices on an electronic delivery system (which may be provided
by any of the Administrative Agent, an Affiliate of Administrative Agent, or any Person that is not
an Affiliate of Administrative Agent, such as IntraLinks, Syndtrak or a substantially similar
electronic system (the “Platform”) and (II) certain of the Lenders may be “public-side”
Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to
the Borrower or its securities) (each, a “Public Lender”). The Borrower acknowledges that
(i) the distribution of material through an electronic medium is not necessarily secure and that
there are confidentiality and other risks associated with such distribution; (ii) the Platform is
provided “as is” and “as available” and (iii) neither the Administrative Agent nor any of its
Affiliates warrants the accuracy, completeness, timeliness, sufficiency, or sequencing of the
Communications posted on the Platform. The Administrative Agent and its Affiliates each expressly
disclaim with respect to the Platform any liability for errors in transmission, incorrect or
incomplete downloading, delays in posting or delivery, or problems accessing the Communications
posted on the Platform and any liability for any losses, costs, expenses or liabilities that may be
suffered or incurred in connection with the Platform. No warranty of any kind, express, implied or
statutory, including, without limitation, 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 the Administrative Agent or any of its Affiliates in connection with the Platform.




          The Borrower hereby agrees that (w) all Communications that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the
word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Communications
“PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders
to treat such Communications 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 Communications constitute confidential information
pursuant to Section 9.12, they shall be treated as set forth in such subsection); (y) all
Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated “Public Investor”; and (z) the Administrative Agent shall be entitled to treat any
Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not designated “Public Investor”.




          Each Lender agrees that notice to it (as provided in the next sentence) (a “Notice”)
specifying that any Communication has been posted to the Platform shall for purposes of this
Agreement constitute effective delivery to such Lender of such information, documents or other
materials comprising such Communication. Each Lender agrees (i) to notify, on or before the date
such Lender becomes a party to this Agreement (pursuant to an Administrative Questionnaire or
otherwise), the Administrative Agent in writing of such Lender’s e-mail address to which a Notice
may be sent (and from time to time thereafter to ensure that the Administrative Agent has on record
an effective e-mail address for such Lender) and (ii) that any Notice may be sent to such e-mail
address. Notwithstanding the foregoing, (x) the Borrower shall not be responsible for any failure
of the Platform or for the inability of any Lender to access any Communication made available by
the Borrower to the Administrative Agent in connection with the Platform and in no event shall any
such failure constitute an Event of Default hereunder and (y) notices to any Lender pursuant to
Section 2 shall not be provided by means other than hard copy or telecopy if such Lender notifies the Administrative Agent that it is not capable
of receiving such notices by such other means.




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     SECTION 9.02. Waivers; Amendments.



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




          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent or , as the case may be, the Collateral
Agent, with the consent of the Required Lenders; provided that no such agreement shall (i)
increase the Commitment of any Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of each Lender affected
thereby, (iv) change (x) Section 2.16(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby or (y) any other Section of this Agreement that provides for pro rata
treatment as amongst the Lenders in each case without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder, without the written
consent of each Lender, (vi) subordinate the principal of or interest or fees on the Loans, or any
other amounts payable hereunder, to any other Indebtedness, without the written consent of each
Lender, or (vii) release all or substantially all of the Collateral (other than when permitted
under the Loan Documents) or release the Borrower from its obligations under the Security
Documents, in each case without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent hereunder without the prior written consent of the Administrative Agent
and no such agreement shall amend, modify or otherwise affect the rights or duties of the
Collateral Agent under the Security Documents without the prior written consent of the Collateral
Agent. Notwithstanding anything to the contrary contained herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder, except as provided
in Section 2.18.







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     SECTION 9.03. Expenses; Indemnity: Damage; Waiver.



          (a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its respective Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the preparation and
administration of this Agreement, any other Loan Document 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) without limitation of the preceding clause (i), all
out-of-pocket costs and expenses of Administrative Agent and Collateral Agent in connection with
the creation, perfection and maintenance of Liens pursuant to the Security Documents, (iii) without
limitation of the preceding clause (i), all out-of-pocket costs and expenses of Administrative
Agent and Collateral Agent in connection with protecting, storing, insuring, handling, maintaining
or selling any Collateral, and (iv) all out-of-pocket expenses incurred by the Administrative
Agent, Collateral Agent or any Lender, including the fees, charges and disbursements of any counsel
for the Administrative Agent, the Collateral Agent or, during the continuance of an Event of
Default, any Lender, in connection with the enforcement or protection of its rights in connection
with this Agreement or any other Loan Document, including its rights under this Section, or 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) The Borrower shall indemnify the Administrative Agent, the Collateral Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of,
in connection with, or as a result of (i) this Agreement or any other Loan Document, (ii) the use
or proposed use of the proceeds of any Loan, or (iii) any actual or prospective claim, litigation,
investigation or proceeding relating thereto, whether based on contract, tort or any other theory,
whether initiated by any third party or by the Borrower and regardless of whether any Indemnitee is
a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or related expenses resulted from the
gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable
judgment of a court of competent jurisdiction. This Section 9.03(b) shall not apply with respect
to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim.




          (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent or the Collateral Agent under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent or Collateral Agent, as applicable, 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 the Collateral Agent, in its capacity
as such.







- 50 -









 








          (d) To the extent permitted by applicable law, no claim shall be made by the Borrower, the
Administrative Agent, the Collateral Agent or any Lender against any party hereto or any of their
respective Related Parties for any special, indirect, consequential or punitive damages in respect
of any claim for breach of contract or under any other theory of liability arising out of or
related to the transactions contemplated by this Agreement or the other Loan Documents, or any
act, omission or event occurring in connection herewith or therewith; and the Borrower, the
Administrative Agent, the Collateral Agent and each Lender, each for itself and its respective
Related Parties, waives, releases and agrees not to sue upon any claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in its favor.




          (e) All amounts due under this Section shall be payable not later than 10 Business Days after
written demand therefor.




     SECTION 9.04. Successors and Assigns.



          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent 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 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) Any Lender (other than any Conduit Lender) may and, if requested by the Borrower upon
notice by the Borrower delivered to such Lender and the Administrative Agent pursuant to Section
2.17(b), such Lender will, assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it) (i) with the prior written consent (such consent not to be unreasonably withheld)
of (A) the Borrower, provided that no consent shall be required for an assignment to a
Lender, an Affiliate of a Lender (including a Conduit Lender of such Lender) or any Approved Fund,
or if an Event of Default has occurred and is continuing, any other assignee; and (B) the
Administrative Agent, (ii) except in the case of an assignment to a Lender, an Affiliate of a
Lender (including a Conduit Lender of such Lender) or any Approved Fund, or an assignment of the
entire remaining amount of the assigning Lender’s Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be
less than $5,000,000 unless the Borrower and the Administrative Agent otherwise consent (provided
that, for purposes of this clause (ii), the amount described herein shall be aggregated in respect
of each Lender and its related Approved Funds, if any and Borrower’s consent shall not be
unreasonably withheld and shall not be required if an Event of Default has occurred and is
continuing), (iii) each partial assignment of a Tranche 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 such Tranche, (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee
of $3,500 (for avoidance of doubt,


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the Borrower shall not be responsible to pay any fees due or other costs and expenses in
connection with such assignment hereunder), and (v) the assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire; provided further that
any consent of the Borrower otherwise required under this paragraph shall not be required if an
Event of Default has occurred and is continuing. Notwithstanding the foregoing, any Conduit Lender
may assign at any time to its designating Lender hereunder without the consent of the Borrower or
the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its
designation agreement and without regard to the limitations set forth in the first sentence of this
Section 9.04(b). Subject to acceptance and recording thereof pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, 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 Acceptance,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.




          (c) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in the City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitment of, and principal amount 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. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.




          (d) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this paragraph.




          (e) Any Lender (other than any Conduit Lender) may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (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


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and (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the first proviso to
Section 9.02(b) that affects such Participant. Subject to paragraph (f) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.13, 2.14 and
2.15 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant
to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.16(c) as though it were a Lender.




          (f) A Participant shall not be entitled to receive any greater payment under Section 2.13 or
2.15 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.15 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.15(e) as though it were a Lender.




          (g) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.




          (h) Anything in this Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan held by it hereunder to the Borrower or any Affiliate or
Subsidiary thereof without the prior written consent of each Lender.




          (i) The Borrower, each Lender and the Administrative Agent hereby confirms that it will not
institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any
bankruptcy or similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender, provided, however, that each
Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other
party hereto for any loss, cost, damage or expense arising out of its inability to institute such a
proceeding against such Conduit Lender during such period of forbearance.




     SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of



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any Loans, regardless of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and so
long as the Commitments have not expired or terminated. The provisions of Sections 2.13, 2.14,
2.15 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any provision hereof.



     SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and under the other Loan Documents 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 and the other Loan Documents shall
become effective when they shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement and the other Loan Documents by telecopy
or electronic submission shall be effective as delivery of a manually executed counterpart of this
Agreement and the other Loan Documents.



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



     SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or account of the Borrower against any
of and all the obligations of the Borrower now or hereafter existing under this Agreement or any
other Loan Document held by such Lender, irrespective of whether or not such Lender shall have made
any demand under this Agreement and although such obligations may be unmatured, provided that such
Lender shall give notice of any set off or application of deposits to the Borrower and to the
Administrative Agent. The rights of each Lender under this Section are in addition to other rights
and remedies (including other rights of setoff) which such Lender may have. Notwithstanding
anything contained herein to the contrary, no portion of the Collateral or other assets of the
Borrower held by the Collateral Agent or any Lender, at any time, shall be subject to set off and
applied against the Loans except as set forth in the Security Agreement.




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     SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.



          (a) This Agreement shall be governed by and construed in accordance with the law of the State
of New York.




          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any
other Loan Document shall affect any right that the Administrative Agent, the Collateral 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) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.




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




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



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



     SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Collateral Agent
and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates’ directors, officers,
employees and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority or self-regulatory body, (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section, to (x) any actual
or prospective assignee, Participant or counterparty (and its advisors) to any swap,
securitization or derivative transaction referencing or involving any of its rights or obligations
under this Agreement or (y) any credit insurance provider relating to the Borrower and its
obligations under this Agreement, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent, the Collateral Agent or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes of this Section,
“Information” means all information received from the Borrower relating to the Borrower or
its business, other than any such information that is available to the Administrative Agent, the
Collateral Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the date hereof,
such information is clearly identified at the time of delivery as confidential; provided
further that any information received pursuant to Section 5.01(f) hereof shall be deemed to
have been so identified as confidential. 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.



     Notwithstanding the foregoing, the Administrative Agent, the Collateral Agent and the Lenders
(and each of their respective employees, representatives or other agents) may disclose to any and
all persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided to such person to the extent relating to such tax treatment
and tax structure.



     SECTION 9.13. Highest Lawful Rate. Notwithstanding anything to the contrary contained
in this Agreement, at no time shall the interest rate payable on the Loans, together with any
commitment fee and other amounts payable hereunder to the extent the same constitute or are deemed
to constitute interest, exceed the maximum rate of interest, if any, which at any time or from time
to time may be contracted for, taken, charged or received on the Loans or any promissory note
evidencing the same or which may be owing to any Lender pursuant to this Agreement under the laws
applicable to such Lender and this Agreement.



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     SECTION 9.14. USA Patriot Act. Each 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 to identify the Borrower in accordance with the Act. The Borrower
shall provide such information promptly upon the request of such Lender.



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



	 	 	 	 	 
	 	ALLEGHANY CORPORATION

 	 
	 	By:  	/s/ Roger B. Gorham
 	 
	 	 	Name:  	Roger B. Gorham 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION, 

individually as a Lender and as 

Administrative Agent

 	 
	 	By:  	/s/ Dennis Cogan
 	 
	 	 	Name:  	Dennis Cogan 	 
	 	 	Title:  	Senior Vice President