**Exhibit 10.2**

 

[Published CUSIP Number:                                    ]

 

 

**CREDIT AGREEMENT**

 

Datedas of June 30, 2006

 

among

 

**INFRASOURCE INCORPORATED,**

 

asthe Borrower,

 

**INFRASOURCE SERVICES, INC.,**

 

asHoldings,

 

**BANK OF AMERICA, N.A.,**

 

asAdministrative Agent, Swing Line Lender and L/C Issuer,

 

**JPMORGAN CHASE BANK, N.A.**

 

asSyndication Agent,

 

**LASALLE BANK NATIONAL ASSOCIATION** and **NATIONALCITY BANK**

 

asCo-Documentation Agents,

 

and

 

TheOther Lenders Party Hereto

 

**BANC OF AMERICA SECURITIES LLC,**

 

as

 

SoleLead Arranger and Sole Book Manager

 

----

 

TABLE OF CONTENTS

 

 
| ** **   | ** **                                                | **Page** |
|--------------|-----------------------------------------------------------|----------|
|         |                                                      |     |
| ARTICLE I.   | DEFINITIONS AND ACCOUNTING  TERMS                         | 1        |
|         |                                                      |     |
| 1.01.        | Defined  Terms                                            | 1        |
|         |                                                      |     |
| 1.02.        | Other  Interpretive Provisions                            | 23       |
|         |                                                      |     |
| 1.03.        | Accounting  Terms                                         | 24       |
|         |                                                      |     |
| 1.04.        | Rounding                                                  | 25       |
|         |                                                      |     |
| 1.05.        | Times  of Day                                             | 25       |
|         |                                                      |     |
| 1.06.        | Letter  of Credit Amounts                                 | 25       |
|         |                                                      |     |
| 1.07.        | Exchange  Rates; Currency Equivalents                     | 25       |
|         |                                                      |     |
| ARTICLE II.  | THE COMMITMENTS AND CREDIT  EXTENSIONS                    | 25       |
|         |                                                      |     |
| 2.01.        | Committed  Loans                                          | 25       |
|         |                                                      |     |
| 2.02.        | Borrowings,  Conversions and Continuations of Loans       | 26       |
|         |                                                      |     |
| 2.03.        | Letters  of Credit                                        | 27       |
|         |                                                      |     |
| 2.04.        | Swing  Line Loans                                         | 35       |
|         |                                                      |     |
| 2.05.        | Prepayments                                               | 38       |
|         |                                                      |     |
| 2.06.        | Termination  or Reduction of Commitments                  | 38       |
|         |                                                      |     |
| 2.07.        | Repayment  of Loans                                       | 39       |
|         |                                                      |     |
| 2.08.        | Interest                                                  | 39       |
|         |                                                      |     |
| 2.09.        | Fees                                                      | 40       |
|         |                                                      |     |
| 2.10.        | Computation  of Interest and Fees                         | 40       |
|         |                                                      |     |
| 2.11.        | Evidence  of Debt                                         | 41       |
|         |                                                      |     |
| 2.12.        | Payments  Generally; Administrative Agent’s Clawback | 41       |
|         |                                                      |     |
| 2.13.        | Sharing  of Payments by Lenders                           | 43       |
|         |                                                      |     |
| 2.14.        | Increase  in Commitments                                  | 44       |
|         |                                                      |     |
| 2.15.        | The  Term Loan Borrowings                                 | 45       |
|         |                                                      |     |
| ARTICLE III. | TAXES, YIELD PROTECTION  AND ILLEGALITY                   | 45       |
|         |                                                      |     |
| 3.01.        | Taxes                                                     | 45       |
|         |                                                      |     |
| 3.02.        | Illegality                                                | 47       |
|         |                                                      |     |
| 3.03.        | Inability  to Determine Rates                             | 47       |
|         |                                                      |     |
| 3.04.        | Increased  Costs; Reserves on Eurodollar Rate Loans       | 48       |
|         |                                                      |     |
| 3.05.        | Compensation  for Losses                                  | 49       |

 

i

----

 
| ** **  | ** **                                                                   | **Page** |
|-------------|------------------------------------------------------------------------------|----------|
|        |                                                                         |     |
| 3.06.       | Mitigation  Obligations; Replacement of Lenders                              | 50       |
|        |                                                                         |     |
| 3.07.       | Survival                                                                     | 50       |
|        |                                                                         |     |
| ARTICLE IV. | CONDITIONS PRECEDENT TO  CREDIT EXTENSIONS                                   | 50       |
|        |                                                                         |     |
| 4.01.       | Conditions  of Initial Credit Extension                                      | 50       |
|        |                                                                         |     |
| 4.02.       | Conditions  to all Credit Extensions                                         | 52       |
|        |                                                                         |     |
| ARTICLE V.  | REPRESENTATIONS AND  WARRANTIES                                              | 53       |
|        |                                                                         |     |
| 5.01.       | Existence,  Qualification and Power                                          | 53       |
|        |                                                                         |     |
| 5.02.       | Authorization;  No Contravention                                             | 53       |
|        |                                                                         |     |
| 5.03.       | Governmental  Authorization; Other Consents                                  | 53       |
|        |                                                                         |     |
| 5.04.       | Binding  Effect                                                              | 54       |
|        |                                                                         |     |
| 5.05.       | Financial  Statements; No Material Adverse Effect; No Internal Control Event | 54       |
|        |                                                                         |     |
| 5.06.       | Litigation                                                                   | 54       |
|        |                                                                         |     |
| 5.07.       | No  Default                                                                  | 55       |
|        |                                                                         |     |
| 5.08.       | Ownership  of Property; Liens                                                | 55       |
|        |                                                                         |     |
| 5.09.       | Environmental  Compliance                                                    | 55       |
|        |                                                                         |     |
| 5.10.       | Insurance                                                                    | 55       |
|        |                                                                         |     |
| 5.11.       | Taxes                                                                        | 55       |
|        |                                                                         |     |
| 5.12.       | ERISA  Compliance                                                            | 55       |
|        |                                                                         |     |
| 5.13.       | Subsidiaries;  Equity Interests                                              | 56       |
|        |                                                                         |     |
| 5.14.       | Margin  Regulations; Investment Company Act                                  | 56       |
|        |                                                                         |     |
| 5.15.       | Disclosure                                                                   | 56       |
|        |                                                                         |     |
| 5.16.       | Compliance  with Laws                                                        | 56       |
|        |                                                                         |     |
| 5.17.       | Intellectual  Property; Licenses, Etc                                        | 57       |
|        |                                                                         |     |
| 5.18.       | Solvency                                                                     | 57       |
|        |                                                                         |     |
| 5.19.       | Collateral  Documents                                                        | 57       |
|        |                                                                         |     |
| 5.20.       | Guaranty                                                                     | 57       |
|        |                                                                         |     |
| 5.21.       | Regulated  Subsidiaries                                                      | 57       |
|        |                                                                         |     |
| ARTICLE VI. | AFFIRMATIVE COVENANTS                                                        | 57       |
|        |                                                                         |     |
| 6.01.       | Financial  Statements                                                        | 57       |

 

ii

----

 
| ** **   | ** **                                           | **Page** |
|--------------|------------------------------------------------------|----------|
|         |                                                 |     |
| 6.02.        | Certificates;  Other Information                     | 58       |
|         |                                                 |     |
| 6.03.        | Notices                                              | 59       |
|         |                                                 |     |
| 6.04.        | Payment  of Obligations                              | 59       |
|         |                                                 |     |
| 6.05.        | Preservation  of Existence, Etc                      | 60       |
|         |                                                 |     |
| 6.06.        | Maintenance  of Properties                           | 60       |
|         |                                                 |     |
| 6.07.        | Maintenance  of Insurance                            | 60       |
|         |                                                 |     |
| 6.08.        | Compliance  with Laws                                | 60       |
|         |                                                 |     |
| 6.09.        | Books  and Records                                   | 60       |
|         |                                                 |     |
| 6.10.        | Inspection  of Properties and Books, etc.            | 60       |
|         |                                                 |     |
| 6.11.        | Use  of Proceeds                                     | 61       |
|         |                                                 |     |
| 6.12.        | Covenant  to Guarantee Obligations and Give Security | 61       |
|         |                                                 |     |
| 6.13.        | Further  Assurances                                  | 62       |
|         |                                                 |     |
| 6.14.        | Regulated  Subsidiaries; Approval                    | 62       |
|         |                                                 |     |
| 6.15.        | Mechanical  Specialties                              | 62       |
|         |                                                 |     |
| ARTICLE VII. | NEGATIVE COVENANTS                                   | 63       |
|         |                                                 |     |
| 7.01.        | Liens                                                | 63       |
|         |                                                 |     |
| 7.02.        | Investments                                          | 65       |
|         |                                                 |     |
| 7.03.        | Indebtedness                                         | 67       |
|         |                                                 |     |
| 7.04.        | Fundamental  Changes                                 | 68       |
|         |                                                 |     |
| 7.05.        | Dispositions                                         | 68       |
|         |                                                 |     |
| 7.06.        | Restricted  Payments                                 | 69       |
|         |                                                 |     |
| 7.07.        | Change  in Nature of Business                        | 69       |
|         |                                                 |     |
| 7.08.        | Transactions  with Affiliates                        | 70       |
|         |                                                 |     |
| 7.09.        | Burdensome  Agreements                               | 70       |
|         |                                                 |     |
| 7.10.        | Use  of Proceeds                                     | 70       |
|         |                                                 |     |
| 7.11.        | Financial  Covenants                                 | 70       |
|         |                                                 |     |
| 7.12.        | Capital  Expenditures                                | 70       |
|         |                                                 |     |
| 7.13.        | Amendments  of Organization Documents                | 71       |
|         |                                                 |     |
| 7.14.        | Accounting  Changes                                  | 71       |
|         |                                                 |     |
| 7.15.        | Prepayments,  Etc. of Indebtedness                   | 71       |
|              |                                                      |          |  |

 

iii

----

 
| ** **    | ** **                                              | **Page** |
|---------------|---------------------------------------------------------|----------|
|          |                                                    |     |
| 7.16.         | Sales  and Leasebacks                                   | 71       |
|          |                                                    |     |
| 7.17.         | Swap  Contracts                                         | 71       |
|          |                                                    |     |
| 7.18.         | Certain  Agreements                                     | 71       |
|          |                                                    |     |
| 7.19.         | Holdings                                                | 72       |
|          |                                                    |     |
| ARTICLE VIII. |   EVENTS OF  DEFAULT AND REMEDIES             | 72       |
|          |                                                    |     |
| 8.01.         | Events  of Default                                      | 72       |
|          |                                                    |     |
| 8.02.         | Remedies  Upon Event of Default                         | 74       |
|          |                                                    |     |
| 8.03.         | Application  of Funds                                   | 74       |
|          |                                                    |     |
| ARTICLE IX.   | ADMINISTRATIVE AGENT                                    | 75       |
|          |                                                    |     |
| 9.01.         | Appointment  and Authority                              | 75       |
|          |                                                    |     |
| 9.02.         | Rights  as a Lender                                     | 76       |
|          |                                                    |     |
| 9.03.         | Exculpatory  Provisions                                 | 76       |
|          |                                                    |     |
| 9.04.         | Reliance  by Administrative Agent                       | 77       |
|          |                                                    |     |
| 9.05.         | Delegation  of Duties                                   | 77       |
|          |                                                    |     |
| 9.06.         | Resignation  of Administrative Agent                    | 77       |
|          |                                                    |     |
| 9.07.         | Non-Reliance  on Administrative Agent and Other Lenders | 78       |
|          |                                                    |     |
| 9.08.         | No  Other Duties, Etc                                   | 78       |
|          |                                                    |     |
| 9.09.         | Administrative  Agent May File Proofs of Claim          | 78       |
|          |                                                    |     |
| 9.10.         | Collateral  and Guaranty Matters                        | 79       |
|          |                                                    |     |
| ARTICLE X.    | CONTINUING GUARANTY                                     | 80       |
|          |                                                    |     |
| 10.01.        | Guaranty                                                | 80       |
|          |                                                    |     |
| 10.02.        | Rights  of Lenders                                      | 80       |
|          |                                                    |     |
| 10.03.        | Certain  Waivers                                        | 80       |
|          |                                                    |     |
| 10.04.        | Obligations  Independent                                | 81       |
|          |                                                    |     |
| 10.05.        | Subrogation                                             | 81       |
|          |                                                    |     |
| 10.06.        | Termination;  Reinstatement                             | 81       |
|          |                                                    |     |
| 10.07.        | Subordination                                           | 81       |
|          |                                                    |     |
| 10.08.        | Stay  of Acceleration                                   | 82       |
|          |                                                    |     |
| 10.09.        | Condition  of Borrower                                  | 82       |
|               |                                                         |          |  |

 

iv

----

 
| ** **  | ** **                                         | **Page** |
|-------------|----------------------------------------------------|----------|
|        |                                               |     |
| ARTICLE XI. | MISCELLANEOUS                                      | 82       |
|        |                                               |     |
| 11.01.      | Amendments,  Etc                                   | 82       |
|        |                                               |     |
| 11.02.      | Notices;  Effectiveness; Electronic Communication  | 83       |
|        |                                               |     |
| 11.03.      | No  Waiver; Cumulative Remedies                    | 85       |
|        |                                               |     |
| 11.04.      | Expenses;  Indemnity; Damage Waiver                | 85       |
|        |                                               |     |
| 11.05.      | Payments  Set Aside                                | 87       |
|        |                                               |     |
| 11.06.      | Successors  and Assigns                            | 87       |
|        |                                               |     |
| 11.07.      | Treatment  of Certain Information; Confidentiality | 91       |
|        |                                               |     |
| 11.08.      | Right  of Setoff                                   | 92       |
|        |                                               |     |
| 11.09.      | Interest  Rate Limitation                          | 92       |
|        |                                               |     |
| 11.10.      | Counterparts;  Integration; Effectiveness          | 93       |
|        |                                               |     |
| 11.11.      | Survival  of Representations and Warranties        | 93       |
|        |                                               |     |
| 11.12.      | Severability                                       | 93       |
|        |                                               |     |
| 11.13.      | Replacement  of Lenders                            | 93       |
|        |                                               |     |
| 11.14.      | Governing  Law; Jurisdiction; Etc                  | 94       |
|        |                                               |     |
| 11.15.      | Waiver  of Jury Trial                              | 95       |
|        |                                               |     |
| 11.16.      | No  Advisory or Fiduciary Responsibility           | 95       |
|        |                                               |     |
| 11.17.      | USA  PATRIOT Act Notice                            | 96       |
|        |                                               |     |
| 11.18.      | Judgment  Currency                                 | 96       |

 

v

----

 
| **SCHEDULES** |                                                                      |
|---------------|---------------------------------------------------------------------------|
| ** **    |                                                                      |
| 1.01          | Existing  Letters of Credit                                               |
| 2.01          | Commitments  and Applicable Percentages                                   |
| 4.01(a)(iii)  | Landlord  Waiver Locations                                                |
| 4.01(a)(vi)   | Local  Counsel Opinions                                                   |
| 5.08(b)       | Existing  Liens                                                           |
| 5.09          | Environmental  Matters                                                    |
| 5.13          | Subsidiaries;  Other Equity Investments; Equity Interests in the Borrower |
| 6.12          | Guarantors                                                                |
| 7.03          | Existing  Indebtedness                                                    |
| 7.05          | Certain  Dispositions                                                     |
| 7.09          | Existing  Burdensome Agreements                                           |
| 11.02         | Administrative  Agent’s Office; Certain Addresses for Notices        |
| 11.06         | Processing  and Recordation Fees                                          |

 
| **EXHIBITS** |                                         |
|--------------|----------------------------------------------|
| ** **   |                                         |
|         | ***Form of***                                |
|         | *** ***                                 |
| A            | Loan  Notice                                 |
| B            | Swing  Line Loan Notice                      |
| C-1          | Term  Loan Note                              |
| C-2          | Revolving  Credit Note                       |
| D            | Compliance  Certificate                      |
| E            | Assignment  and Assumption                   |
| F            | Guaranty                                     |
| G            | Security  Agreement                          |
| H            | Pledge  Agreement                            |
| I            | Collateral  Assignment of Intercompany Notes |

 

----

 

**CREDIT AGREEMENT**

 

This CREDIT AGREEMENT (“Agreement”) is entered into as of June30, 2006,****among INFRASOURCEINCORPORATED, a Delaware corporation (the “Borrower”), INFRASOURCESERVICES, INC., a Delaware corporation (“Holdings”) each lender fromtime to time party hereto (collectively, the “Lenders” and individually,a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, SwingLine Lender and L/C Issuer.

 

The Borrower has requested that the Lenders provide a revolving creditfacility, and the Lenders are willing to do so on the terms and conditions setforth herein.

 

In consideration of the mutual covenants and agreements hereincontained, the parties hereto, intending to be legally bound hereby, covenantand agree as follows:

 

**ARTICLE I.****DEFINITIONS AND ACCOUNTING TERMS**

 

**1.01.****      ****Defined Terms**. As used in this Agreement, each of thefollowing terms shall have the meaning set forth below:

 

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

 

“Administrative Agent’s Office” means the Administrative Agent’saddress and, as appropriate, account as set forth on Schedule 11.02, orsuch other address or account as the Administrative Agent may from time to timenotify to the Borrower and the Lenders.

 

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

 

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

 

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

 

“Agreement” means this Credit Agreement.

 

“Alternative Currency” means the Canadian dollar.

 

“Alternative Currency Equivalent” means, at any time, withrespect to any amount denominated in Dollars, the equivalent amount thereof inthe applicable Alternative Currency as determined by the L/C Issuer at suchtime on the basis of the Spot Rate (determined in respect of the most recentRevaluation Date) for the purchase of such Alternative Currency with Dollars.

 

“Applicable Percentage” means (a) in respect of the Term LoanFacility, with respect to any Term Loan Lender at any time, the percentage(carried out to the ninth decimal place) of the Term Loan Facility representedby the principal amount of such Term Loan Lender’s Term Loan at such time and(b) in respect of the Revolving Credit Facility, with respect to anyRevolving Credit Lender at any time, the percentage (carried out to the ninthdecimal place) of the Revolving Credit Facility represented by such RevolvingCredit Lender’s Commitment at such time. If the commitment of each RevolvingCredit 

 

----

 

Lenderto make Committed Loans and the obligation of the L/C Issuer to make L/C CreditExtensions have been terminated pursuant to Section 8.02, or if theAggregate Commitments have expired, then the Applicable Percentage of eachRevolving Credit Lender in respect of the Revolving Credit Facility shall bedetermined based on the Applicable Percentage of such Revolving Credit Lenderin respect of the Revolving Credit Facility most recently in effect, givingeffect to any subsequent assignments. The initial Applicable Percentage of eachLender in respect of each Facility is set forth opposite the name of suchLender on Schedule 2.01 or in the Assignment and Assumption pursuant towhich such Lender becomes a party hereto, as applicable.

 

“Applicable Rate” means the following percentages per annum,based upon the Consolidated Leverage Ratio as set forth in the most recentCompliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

 

**Applicable Rate**

 
| **Pricing  Level** | ** ** | **Consolidated  Leverage Ratio** | ** ** | **Commitment  Fee** | ** ** | **Eurodollar  Rate  Letters of  Credit** | ** ** | **Base Rate** | ** ** |
|--------------------|------------|---------------------------------------|------------|---------------------|------------|-----------------------------------------------|------------|--------------------|------------|
| 1                  |       | 33.00:1                          |       | 0.350               | %          | 2.00                                          | %          | 1.00               | %          |
| 2                  |       | <3.00:1 but 32.25:1           |       | 0.300               | %          | 1.75                                          | %          | 0.75               | %          |
| 3                  |       | <2.25:1 but 31.50:1           |       | 0.250               | %          | 1.50                                          | %          | 0.50               | %          |
| 4                  |       | <1.50:1 but 31.00:1           |       | 0.200               | %          | 1.25                                          | %          | 0.25               | %          |
| 5                  |       | <1.00:1                            |       | 0.175               | %          | 1.00                                          | %          | 0.00               | %          |

 

Any increase or decrease in the Applicable Rate resulting from a changein the Consolidated Leverage Ratio shall become effective as of the firstBusiness Day immediately following the date a Compliance Certificate isdelivered pursuant to Section 6.02(a); provided, however,that if a Compliance Certificate is not delivered when due in accordance withsuch Section, then Pricing Level 1 shall apply as of the first Business Dayafter the date on which such Compliance Certificate was required to have beendelivered until the first Business Day after such Compliance Certificate isdelivered. The Applicable Rate in effect from the Closing Date through the dateof receipt by the Administrative Agent of the First Compliance Certificateafter the Closing Date shall be determined based upon Pricing Level 4.

 

“Applicable Revolving Credit Percentage” means with respect toany Revolving Credit Lender at any time, such Revolving Credit Lender’sApplicable Percentage in respect of the Revolving Credit Facility at such time.

 

“Applicable Time” means, with respect to any payments in anyAlternative Currency, the local time in the place of settlement for suchAlternative Currency as may be determined by the L/C Issuer to be necessary fortimely settlement on the relevant date in accordance with normal bankingprocedures in the place of payment.

 

“Appropriate Lender” means, at any time, (a) with respect to theTerm Loan Facility, a Lender that holds a Term Loan at such time, (b) withrespect to the Revolving Credit Facility, a Revolving Credit 

 

2

----

 

Lenderthat has a Commitment with respect to the Revolving Credit Facility or aCommitted Loan at such time, (b) with respect to the Letter of CreditSublimit, (i) the L/C Issuer and (ii) if any Letters of Credit havebeen issued pursuant to Section 2.03(a), the Revolving Credit Lendersand (c) with respect to the Swing Line Sublimit, (i) the Swing LineLender and (ii) if any Swing Line Loans are outstanding pursuant to Section2.04(a), the Revolving Credit Lenders.

 

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

 

“Arranger” means Banc of America Securities LLC, in its capacityas sole lead arranger and sole book manager.

 

“Assignee Group” means two or more Eligible Assignees that areAffiliates of one another or two or more Approved Funds managed by the sameinvestment advisor.

 

“Assignment and Assumption” means an assignment and assumptionentered into by a Lender and an assignee (with the consent of any party whoseconsent is required by Section 11.06(b), and accepted by theAdministrative Agent, in substantially the form of Exhibit E or anyother form approved by the Administrative Agent.

 

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

 

“Audited Financial Statements” means the audited consolidatedbalance sheet of Holdings and its Subsidiaries for the fiscal year endedDecember 31, 2005, and the related consolidated statements of income oroperations, shareholders’ equity and cash flows for such fiscal year ofHoldings and its Subsidiaries, including the notes thereto.

 

“Availability Period” means, in respect of the Revolving CreditFacility, the period from and including the Closing Date to the earliest of (a)the Maturity Date, (b) the date of termination of the Aggregate Commitmentspursuant to Section 2.06, and (c) the date of termination of thecommitment of each Revolving Credit Lender to make Committed Loans and of theobligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section8.02.

 

“Bank of America” means Bank of America, N.A. and itssuccessors.

 

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

 

“Base Rate Loan” means a Committed Loan or a Term Loan that is aBase Rate Loan.

 

“Bonded Contracts” has the meaning specified in Section7.01(q).

 

3

----

 

“Borrower” has the meaning specified in the introductoryparagraph hereto.

 

“Borrower Materials” has the meaning specified in Section6.02.

 

“Borrowing” means a Committed Borrowing, a Swing Line Borrowingor a Term Loan Borrowing, as the context may require.

 

“Business Day” means any day other than a Saturday, Sunday orother day on which commercial banks are authorized to close under the Laws of,or are in fact closed in, the state where the Administrative Agent’s Office islocated and, if such day relates to any Eurodollar Rate Loan, means any suchday on which dealings in Dollar deposits are conducted by and between banks inthe London interbank eurodollar market.

 

“Capital Expenditures” means, with respect to any Person for anyperiod, any expenditure in respect of the purchase or other acquisition of anyfixed or capital asset (excluding normal replacements and maintenance which areproperly charged to current operations). Notwithstanding the foregoing, CapitalExpenditures shall not include (a) expenditures with net cash proceeds ofsubstantially concurrent sales or issuances of Equity Interests, (b) amountsexpended in connection with Permitted Acquisitions, and (c) equipment or otherproperty purchases simultaneously or substantially concurrently with the trade-inof existing equipment or property owned by the Borrower and its Subsidiaries tothe extent of the trade-in credit with respect to the equipment or propertybeing trade-in.

 

“Cash Collateralize” has the meaning specified in Section2.03(g).

 

“Cash Equivalents” means any of the following types ofInvestments:

 

(a)           marketable obligations issued or directly and fully guaranteed orinsured by the United States of America or any agency or instrumentalitythereof having maturities of not more than one year from the date ofacquisition thereof; provided that the full faith and credit of theUnited States of America is pledged in support thereof;

 

(b)           dollar denominated (including eurodollar) time deposits with, orcertificates of deposit, repurchase agreements or bankers’ acceptances of, anycommercial bank that (i) is a Lender or (ii) has combined capital andsurplus of at least $500,000,000, in each case with maturities of not more thanone year****from the date ofacquisition thereof;

 

(c)           commercial paper issued by any Person organized under the laws of anystate of the United States of America and rated at least “Prime-1” (or the thenequivalent grade) by Moody’s or at least “A-1” (or the then equivalentgrade) by S&P, in each case with maturities of not more than sixmonths from the date of acquisition thereof;

 

(d)           Investments, classified in accordance with GAAP as current assets ofthe Borrower or any of its Subsidiaries, in money market investment programsregistered under the Investment Company Act of 1940, as amended, havingportfolios of at least $500,000,000, and which are limited substantially toInvestments of the character, quality and maturity described in clauses (a),(b) and (c) of this definition; and

 

(e)           Investments by Foreign Subsidiaries in short term Investments notexceeding $2,000,000 in the aggregate at any time.

 

4

----

 

“Cash Management Agreement” means any agreement to provide cashmanagement services, including treasury, depository, overdraft, credit or debitcard, electronic funds transfer and other cash management arrangements.

 

“Cash Management Bank” means any Person that, at the time itenters into a Cash Management Agreement, is a Lender or an Affiliate of aLender, in its capacity as a party to such Cash Management Agreement.

 

“CFC” means a Person that is a controlled foreign corporationunder Section 957 of the Code.

 

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

 

“Change of Control” means an event or series of events by which:

 

(a)           any “person” or “group” (as such terms are used in Sections 13(d) and14(d) of the Securities Exchange Act of 1934) becomes the “beneficial owner”(as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,except that a person or group shall be deemed to have “beneficial ownership” ofall securities that such person or group has the right to acquire, whether suchright is exercisable immediately or only after the passage of time (such right,an “option right”)), directly or indirectly, of 35% or more of theequity securities of Holdings entitled to vote for members of the board ofdirectors or equivalent governing body of Holdings on a fully-diluted basis(and taking into account all such securities that such person or group has theright to acquire pursuant to any option right), but excluding from suchlimitation (i) the Existing Investors, (ii) any Person or Persons who acquiresthe Existing Investors’ equity securities in Holdings so long as such Person orPersons do not become the “beneficial owner” of more than 50% of suchsecurities, and (iii) any employee benefit plan of such person or itssubsidiaries, and any person or entity acting in its capacity as trustee, agentor other fiduciary or administrator of any such plan) ;

 

(b)           during any period of 12 consecutive months, a majority of the membersof the board of directors or other equivalent governing body of Holdings ceaseto be composed of individuals (i) who were members of that board or equivalentgoverning body on the first day of such period, (ii) whose election ornomination to that board or equivalent governing body was approved byindividuals referred to in clause (i) above constituting at the time of suchelection or nomination at least a majority of that board or equivalentgoverning body or (iii) whose election or nomination to that board or otherequivalent governing body was approved by individuals referred to in clauses(i) and (ii) above constituting at the time of such election or nomination atleast a majority of that board or equivalent governing body (excluding, in thecase of both clause (ii) and clause (iii), any individual whose initialnomination for, or assumption of office as, a member of that board orequivalent governing body occurs as a result of an actual or threatenedsolicitation of proxies or consents for the election or removal of one or moredirectors by any person or group other than a solicitation for the election ofone or more directors by or on behalf of the board of directors);

 

(c)           any Person or two or more Persons acting in concert shall have acquiredby contract or otherwise, or shall have entered into a contract or arrangementthat, upon consummation thereof, will result in its or their acquisition of thepower to exercise, directly or indirectly, a controlling influence over themanagement or policies of the Borrower, or control over the equity securitiesof Holdings entitled to 

 

5

----

 

votefor members of the board of directors or equivalent governing body of Holdingson a fully-diluted basis (and taking into account all such securities that suchPerson or group has the right to acquire pursuant to any option right)representing 35% or more of the combined voting power of such securities, butexcluding from such limitation (i) the Existing Investors and (ii) any Personor Persons who acquires the Existing Investors’ equity securities in Holdingsso long such Person or Persons shall not hold more than 50% of the combinedvoting power of such securities; or

 

(d)           Holdings shall cease, directly or indirectly, to own and controllegally and beneficially all of the Equity Interests in the Borrower and,except as provided in Sections 7.04 or 7.05, each of theGuarantors.

 

“Closing Date” means the first date all the conditions precedentin Section 4.01 are satisfied or waived in accordance with Section11.01.

 

“Code” means the Internal Revenue Code of 1986.

 

“Collateral” means all of the “Collateral” referred to inthe Collateral Documents and all of the other property that is or is intendedunder the terms of the Collateral Documents to be subject to Liens in favor ofthe Administrative Agent for the benefit of the Secured Parties.

 

“Collateral Assignment of Intercompany Notes” means collectivelyor individually as the context may require, the Collateral Assignments ofIntercompany Notes, dated as of the Closing Date, executed by the Loan Partiesparty thereto and substantially in the form of Exhibit I, and each otherCollateral Assignment of Intercompany Notes at any time delivered by a LoanParty.

 

“Collateral Documents” means, collectively, the SecurityAgreement, the Pledge Agreement, the Collateral Assignment of IntercompanyNotes, each of the collateral assignments, security agreements, pledgeagreements or other similar agreements delivered to the Administrative Agentpursuant to Section 6.12, and each of the other agreements, instrumentsor documents that creates or purports to create a Lien in favor of theAdministrative Agent for the benefit of the Secured Parties.

 

“Commitment” means, as to each Revolving Credit Lender, itsobligation to (a) make Committed Loans to the Borrower pursuant to Section2.01, (b) purchase participations in L/C Obligations, and (c) purchaseparticipations in Swing Line Loans, in an aggregate principal amount at any onetime outstanding not to exceed the amount set forth opposite such Lender’s nameon Schedule 2.01 or in the Assignment and Assumption pursuant to whichsuch Lender becomes a party hereto, as applicable, as such amount may beadjusted from time to time in accordance with this Agreement.

 

“Committed Borrowing” means a borrowing consisting ofsimultaneous Committed Loans of the same Type and, in the case of EurodollarRate Loans, having the same Interest Period made by each of the RevolvingCredit Lenders pursuant to Section 2.01.

 

“Committed Loan” has the meaning specified in Section 2.01.

 

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

 

“Consolidated Adjusted EBITDA” means, for any period, forHoldings and its Subsidiaries on a consolidated basis, an amount equal toConsolidated Net Income for such period plus (a) the following to theextent deducted in calculating such Consolidated Net Income: (i) ConsolidatedInterest Charges for such period, (ii) the provision for Federal, state, localand foreign income taxes payable by Holdings and its Subsidiaries for suchperiod, (iii) depreciation and amortization expense, (iv) amortization of 

 

6

----

 

intangibles(including, but not limited to, goodwill and organization costs) and anycharges pursuant to SFAS 142 or 144), (v) any extraordinary, unusual ornon-recurring expenses or losses which (A) do not represent a cash item in suchperiod or any future period or (B) do not, in the aggregate, exceed $20,000,000for the term of this Agreement (including, in the case of (A) or (B), whetheror not otherwise includable as a separate item in the statement of suchConsolidated Net Income for such period and losses on sales of assets outsideof the ordinary course of business), (vi) expenses or fees incurred inconnection with any Permitted Acquisitions, (vii) SFAS 123R expenses orpayments or distributions in compliance with Section 7.06(f), and (viii)offering costs related to the sale by Holdings of Equity Interests or the saleby the Borrower of unsecured debt or Subordinated Debt pursuant to Section7.03(j) and minus (b) the following to the extent included incalculating such Consolidated Net Income: (i) Federal, state, local and foreignincome tax credits of Holdings and its Subsidiaries for such period, (ii)interest income, and (iii) all extraordinary, unusual or non-recurring (itbeing understood that income arising from contracts with customers entered intoin the ordinary course of business shall not be considered non-recurring forpurposes of this definition) income or gain increasing Consolidated Net Incomefor such period (including, whether or not otherwise includable as a separateitem in the statement of such Consolidated Net Income for such period, gains onthe sales of assets outside of the ordinary course of business).

 

For the purposes of calculating Consolidated Adjusted EBITDA for anyperiod of four consecutive fiscal quarters (each, a “Reference Period”),(i) if at any time during such Reference Period Holdings or any Subsidiaryshall have made any Material Disposition, the Consolidated Adjusted EBITDA forsuch Reference Period shall be reduced by an amount equal to the ConsolidatedAdjusted EBITDA (if positive) attributable to the property that is the subjectof such Material Disposition for such Reference Period or increased by anamount equal to the Consolidated Adjusted EBITDA (if negative) attributablethereto for such Reference Period, in each case calculated as if such MaterialDisposition occurred on the first day of such Reference Period and (ii) ifduring such Reference Period Borrower or any Subsidiary shall have made aMaterial Acquisition, Consolidated Adjusted EBITDA for such Reference Periodshall be calculated after giving proforma effect thereto(including pro forma effect to any Permitted Cost-Savings) as if such MaterialAcquisition occurred on the first day of such Reference Period.  As usedin this definition, “Material Acquisition” means any acquisition ofproperty or series of related acquisitions of property that (a) constitutesassets comprising all or substantially all of an operating unit of a businessor constitutes all or substantially all of the Equity Interests of a Person and(b) involves the payment of consideration by Holdings and its Subsidiaries inexcess of $5,000,000; and “Material Disposition” means any Dispositionof property or series of related Dispositions of property that yields grossproceeds to Holdings or any of its Subsidiaries in excess of $5,000,000.

 

“Consolidated Adjusted EBITA” means, for any period,Consolidated Adjusted EBITDA for such period minus depreciation expensesfor such period.

 

“Consolidated Funded Indebtedness” means, as of any date ofdetermination, for Holdings and its Subsidiaries on a consolidated basis, thesum of (a) the outstanding principal amount of all obligations, whether currentor long-term, for borrowed money (including Obligations hereunder) and allobligations evidenced by bonds (other than Surety Bonds), debentures, notes,loan agreements or other similar instruments, (b) all purchase moneyIndebtedness, (c) all direct obligations arising under letters of credit(including standby and commercial), bankers’ acceptances, bank guaranties,surety bonds and similar instruments, (d) all obligations in respect of the deferredpurchase price of property or services (other than trade accounts payable inthe ordinary course of business), (e) Attributable Indebtedness in respect ofcapital leases and Synthetic Lease Obligations, (f) without duplication, allGuarantees with respect to outstanding Indebtedness of the types specified inclauses (a) through (e) above of Persons other than Holdings or any Subsidiary,and (g) all Indebtedness of the types referred to in clauses (a) through (f)above of any partnership or joint venture (other than a joint venture that isitself a corporation or limited 

 

7

----

 

liabilitycompany) in which Holdings or a Subsidiary is a general partner or jointventurer, unless such Indebtedness is expressly made non-recourse to Holdingsor such Subsidiary, in each case, as determined in accordance with GAAP.Notwithstanding the foregoing, Consolidated Funded Indebtedness shall notinclude (i) an amount equal to the lesser of (A) the face amount of all outstandingLetters of Credit with an expiry date (exclusive of automatic renewalprovisions) of less than or equal to 365 days and (B) $75,000,000, and (ii)surety bonds (and Guarantee obligations relating thereto), other than those notreimbursed by Holdings or a Subsidiary thereof within five (5) Business Days ofa drawing thereunder.

 

“Consolidated Interest Charges” means, for any period, totalcash interest expense (including that attributable to capital leases) ofHoldings and its Subsidiaries for such period with respect to all outstandingIndebtedness of Holdings and its Subsidiaries (including all commissions,discounts and other fees and charges owed with respect to letters of credit andbankers’ acceptance financing and net costs under Swap Contracts in respect ofinterest rates to the extent such net costs, other than termination costs, areallocable to such period in accordance with GAAP) minus total cash interestincome of Holdings and its Subsidiaries for such period, all as determined on aconsolidated basis in accordance with GAAP.

 

“Consolidated Interest Coverage Ratio” means, as of any date ofdetermination, the ratio of (a) Consolidated Adjusted EBITA for the period ofthe four prior fiscal quarters ending on such date *to* (b) Consolidated Interest Charges for such period.

 

“Consolidated Leverage Ratio” means, as of any date ofdetermination, the ratio of (a) Consolidated Funded Indebtedness as of suchdate*to*(b) Consolidated AdjustedEBITDA for the period of the four fiscal quarters most recently ended.

 

“Consolidated Net Income” means, for any period, for Holdingsand its Subsidiaries on a consolidated basis, the net income of the Holdingsand its Subsidiaries (excluding extraordinary gains and extraordinary losses)for that period; provided that there shall be excluded (a) the income ofany Person accrued prior to the date it becomes a Subsidiary of Holdings or ismerged into or consolidated with Holdings or any of its Subsidiaries, (b) theincome of any Person (other than a Subsidiary of Holdings) in which Holdings orany of its Subsidiaries has an ownership interest, except to the extent thatany such income is actually received by Holdings or such Subsidiary in the formof dividends or similar distributions and (c) the undistributed earnings of anySubsidiary of Holdings to the extent that (i) such undistributed earningsexceed 5% of the net income of Holdings and its Subsidiaries and (ii) thedeclaration or payment of dividends or similar distributions by such Subsidiaryis not at the time permitted by the terms of any Contractual Obligation (otherthan under any Loan Document) or Law applicable to such Subsidiary.

 

“Consolidated Senior Funded Indebtedness” means, as of any dateof determination, for Holdings and its Subsidiaries on a consolidated basis,Consolidated Funded Indebtedness minus the aggregate outstandingprincipal amount of Subordinated Debt and unsecured senior debt incurred by theBorrower pursuant to Section 7.03(j).

 

“Consolidated Senior Leverage Ratio” means, as of any date ofdetermination, the ratio of (a) Consolidated Senior Funded Indebtedness as ofsuch date*to*(b) ConsolidatedAdjusted EBITDA for the period of the four fiscal quarters most recently ended.

 

“Contractual Obligation” means, as to any Person, any provisionof any security issued by such Person or of any agreement, instrument or otherundertaking to which such Person is a party or by which it or any of itsproperty is bound.

 

8

----

 

“Control” means the possession, directly or indirectly, of thepower to direct or cause the direction of the management or policies of aPerson, whether through the ability to exercise voting power, by contract orotherwise. “Controlling” and “Controlled” have meaningscorrelative thereto.

 

“Credit Extension” means each of the following: (a) a Borrowingand (b) an L/C Credit Extension.

 

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

 

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

 

“Default Rate” means (a) when used with respect to Obligationsother than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus(iii) 2% per annum; provided, however, that with respect to aEurodollar Rate Loan, the Default Rate shall be an interest rate equal to theinterest rate (including any Applicable Rate) otherwise applicable to such Loanplus 2% per annum, and (b) when used with respect to Letter of Credit Fees, arate equal to the Applicable Rate plus 2% per annum.

 

“Defaulting Lender” means any Lender that (a) has failed to fundany portion of the Committed Loans, the Term Loan, participations in L/CObligations or participations in Swing Line Loans required to be funded by ithereunder within one Business Day of the date required to be funded by ithereunder unless such failure has been cured, (b) has otherwise failed to payover to the Administrative Agent or any other Lender any other amount requiredto be paid by it hereunder within one Business Day of the date when due, unlessthe subject of a good faith dispute or unless such failure has been cured, or(c) has been deemed insolvent or become the subject of a bankruptcy orinsolvency proceeding.

 

“Disposition” or “Dispose” means the sale, transfer,license, lease or other disposition (including any sale and leasebacktransaction) of any property by any Person (or the granting of any option orother right to do any of the foregoing), including any sale, assignment,transfer or other disposal, with or without recourse, of any notes or accountsreceivable or any rights and claims associated therewith.

 

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

 

“Dollar Equivalent” means, at any time, (a) with respect toany amount denominated in Dollars, such amount, and (b) with respect toany amount denominated in any Alternative Currency, the equivalent amountthereof in Dollars as determined by the L/C Issuer at such time on the basis ofthe Spot Rate (determined in respect of the most recent Revaluation Date) forthe purchase of Dollars with such Alternative Currency.

 

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

 

“Effective Date” has the meaning specified in Section 2.14(b).

 

“Eligible Assignee” means any Person that meets the requirementsto be an assignee under Section 11.06(b)(iii), (v) and (vi)(subject to such consents, if any, as may be required under Section11.06(b)(iii)).

 

9

----

 

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

 

“Environmental Liability” means any liability, contingent orotherwise (including any liability for damages, costs of environmentalremediation, fines, penalties or indemnities), of the Borrower, any other LoanParty or any of their respective Subsidiaries directly or indirectly resultingfrom or based upon (a) violation of any Environmental Law, (b) the generation,use, handling, transportation, storage, treatment or disposal of any HazardousMaterials, (c) exposure to any Hazardous Materials, (d) the release orthreatened release of any Hazardous Materials into the environment or (e) any contract,agreement or other consensual arrangement pursuant to which liability isassumed or imposed with respect to any of the foregoing.

 

“Equity Interests” means, with respect to any Person, all of theshares of capital stock of (or other ownership or profit interests in) suchPerson, all of the warrants, options or other rights for the purchase oracquisition from such Person of shares of capital stock of (or other ownershipor profit interests in) such Person, all of the securities convertible into orexchangeable for shares of capital stock of (or other ownership or profitinterests in) such Person or warrants, rights or options for the purchase oracquisition from such Person of such shares (or such other interests), and allof the other ownership or profit interests in such Person (includingpartnership, member or trust interests therein), whether voting or nonvoting,and whether or not such shares, warrants, options, rights or other interestsare outstanding on any date of determination.

 

“ERISA” means the Employee Retirement Income Security Act of1974.

 

“ERISA Affiliate” means any trade or business (whether or notincorporated) under common control with the Borrower within the meaning ofSection 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code forpurposes of provisions relating to Section 412 of the Code).

 

“ERISA Event” means (a) a Reportable Event with respect to aPension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from aPension Plan subject to Section 4063 of ERISA during a plan year in which itwas a substantial employer (as defined in Section 4001(a)(2) of ERISA) ora cessation of operations that is treated as such a withdrawal under Section4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or anyERISA Affiliate from a Multiemployer Plan or receipt by the Borrower or anyERISA Affiliate of notice that a Multiemployer Plan is in reorganization; (d)the filing of a notice of intent to terminate, the treatment of a Planamendment as a termination under Section 4041 or 4041A of ERISA, or thecommencement of proceedings by the PBGC to terminate a Pension Plan orMultiemployer Plan; (e) an event or condition which constitutes grounds underSection 4042 of ERISA for the termination of, or the appointment of a trusteeto administer, any Pension Plan or Multiemployer Plan; or (f) the imposition ofany liability under Title IV of ERISA, other than for PBGC premiums due but notdelinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

 

“Eurodollar Rate” means, for any Interest Period with respect toa Eurodollar Rate Loan, the rate per annum equal to the British BankersAssociation LIBOR Rate (“BBA LIBOR”), as published by Reuters (or othercommercially available source providing quotations of BBA LIBOR as designatedby the Administrative Agent from time to time) at approximately 11:00 a.m.,London time, two Business Days prior to the commencement of such InterestPeriod, for Dollar deposits (for delivery on the first day 

 

10

----

 

ofsuch Interest Period) with a term equivalent to such Interest Period. If suchrate is not available at such time for any reason, then the “Eurodollar Rate”for such Interest Period shall be the rate per annum determined by theAdministrative Agent to be the rate at which deposits in Dollars for deliveryon the first day of such Interest Period in Same Day Funds in the approximateamount of the Eurodollar Rate Loan being made, continued or converted by Bank ofAmerica and with a term equivalent to such Interest Period would be offered byBank of America’s London Branch to major banks in the London interbankeurodollar market at their request at approximately 11:00 a.m. (London time)two Business Days prior to the commencement of such Interest Period.

 

“Eurodollar Rate Loan” means a Committed Loan or a Term Loanthat bears interest at a rate based on the Eurodollar Rate.

 

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

 

“Excluded Taxes” means, with respect to the AdministrativeAgent, any Lender, the L/C Issuer or any other recipient of any payment to bemade by or on account of any obligation of the Borrower hereunder, (a) taxesimposed on or measured by its overall net income (however denominated), andfranchise taxes imposed on it (in lieu of net income taxes), by thejurisdiction (or any political subdivision thereof) under the laws of whichsuch recipient is organized or in which its principal office is located or, inthe case of any Lender, in which its applicable Lending Office is located, (b)any branch profits taxes imposed by the United States or any similar taximposed by any other jurisdiction in which the Borrower is located and (c) inthe case of a Foreign Lender (other than an assignee pursuant to a request bythe Borrower under Section 11.13), any withholding tax that is imposedon amounts payable to such Foreign Lender at the time such Foreign Lenderbecomes a party hereto (or designates a new Lending Office) or is attributableto such Foreign Lender’s failure or inability (other than as a result of aChange in Law) to comply with Section 3.01(e), except to the extent thatsuch Foreign Lender (or its assignor, if any) was entitled, at the time ofdesignation of a new Lending Office (or assignment), to receive additionalamounts from the Borrower with respect to such withholding tax pursuant to Section3.01(a). Notwithstanding anything to the contrary contained in thisdefinition, “Excluded Taxes” shall not include any withholding tax imposed atany time on payments made by or on behalf of a Foreign Subsidiary to any Lenderhereunder or under any other Loan Document so long as such Lender shall havecomplied with the last paragraph of Section 3.01(e).

 

“Existing Credit Agreement” means that certain Amended andRestated Credit Agreement, as amended, dated as of May 12, 2004, as amended,among Holdings, the Borrower, Barclays Bank PLC, as agent, and a syndicate oflenders.

 

“Existing Investors” means GFI Energy Ventures, LLC and OaktreeCapital Management, LLC.

 

“Existing Letters of Credit” means the letters of credit issuedby LaSalle Bank National Association under the Existing Credit Agreement andlisted on Schedule 1.01.

 

“Facility” means the Term Loan Facility or the Revolving CreditFacility, as the context may require.

 

“Federal Funds Rate” means, for any day, the rate per annumequal to the weighted average of the rates on overnight Federal fundstransactions with members of the Federal Reserve System arranged by Federalfunds brokers on such day, as published by the Federal Reserve Bank of New Yorkon the Business Day next succeeding such day; provided that (a) if suchday is not a Business Day, the Federal Funds Rate for such day shall be suchrate on such transactions on the next preceding Business Day as so published onthe next succeeding Business Day, and (b) if no such rate is so published onsuch next

 

11

----

 

succeedingBusiness Day, the Federal Funds Rate for such day shall be the average rate(rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged toBank of America on such day on such transactions as determined by theAdministrative Agent.

 

“Fee Letter” means the letter agreement, dated May 11, 2006,among Holdings, the Borrower, the Administrative Agent and the Arranger.

 

“Foreign L/C Exposure” means, at any time, the sum of the DollarEquivalent amounts of (a) 100% of the aggregate undrawn amount of alloutstanding Letters of Credit issued in an Alternative Currency at such time, plus(b) the aggregate amount of all drawings under Letters of Credit issued in anAlternative Currency that have not yet been reimbursed by or on behalf of anyLoan Party at such time.

 

“Foreign Lender” means any Lender that is organized under thelaws of a jurisdiction other than that in which the Borrower is resident fortax purposes. For purposes of this definition, the United States, each Statethereof and the District of Columbia shall be deemed to constitute a singlejurisdiction.

 

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

 

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

 

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

 

“GAAP” means generally accepted accounting principles in theUnited States set forth in the opinions and pronouncements of the AccountingPrinciples Board and the American Institute of Certified Public Accountants andstatements and pronouncements of the Financial Accounting Standards Board orsuch other principles as may be approved by a significant segment of the accountingprofession in the United States, that are applicable to the circumstances as ofthe date of determination, consistently applied.

 

“Governmental Authority” means the government of the UnitedStates or any other nation, or of any political subdivision thereof, whetherstate 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 orpertaining to government (including any supra-national bodies such as theEuropean Union or the European Central Bank).

 

“Granting Lender” has the meaning specified in Section11.06(h).

 

“Guarantee” means, as to any Person, any (a) any obligation,contingent or otherwise, of such Person guaranteeing or having the economiceffect of guaranteeing any Indebtedness or other obligation payable orperformable by another Person (the “primary obligor”) in any manner, whetherdirectly or indirectly, and including any obligation of such Person, direct orindirect, (i) to purchase or pay (or advance or supply funds for the purchaseor payment of) such Indebtedness or other obligation, (ii) to purchase or leaseproperty, securities or services for the purpose of assuring the obligee in respectof such Indebtedness or other obligation of the payment or performance of suchIndebtedness or other obligation, (iii) to maintain working capital, equitycapital or any other financial statement condition or liquidity or level ofincome or cash flow of the primary obligor so as to enable the primary obligorto pay such Indebtedness or other obligation, or (iv) entered into for thepurpose of assuring in any other manner the obligee in respect of suchIndebtedness or other obligation of the payment or performance thereof or toprotect such obligee against loss in respect thereof (in whole or in part), or(b) any Lien on any assets of 

 

12

----

 

suchPerson securing any Indebtedness or other obligation of any other Person,whether or not such Indebtedness or other obligation is assumed by such Person(or any right, contingent or otherwise, of any holder of such Indebtedness toobtain any such Lien); provided, however, that the term Guaranteeshall not include endorsements of instruments for deposit or collection in theordinary course of business. The amount of any Guarantee shall be deemed to bean amount equal to the stated or determinable amount of the related primaryobligation, or portion thereof, in respect of which such Guarantee is made or,if not stated or determinable, the maximum reasonably anticipated liability inrespect thereof as determined by the guaranteeing Person in good faith. Theterm “Guarantee” as a verb has a corresponding meaning.

 

“Guarantors” means, collectively, Holdings, the Subsidiaries ofHoldings listed on Schedule 6.12 and each other Subsidiary of Holdings(other than the Borrower) that shall be required to execute and deliver aguaranty or guaranty supplement pursuant to Section 6.12; providedthat, no Regulated Subsidiary shall be a Guarantor.

 

“Guaranty” means, collectively, the Guaranty made by Holdingsunder Article X in favor of the Secured Parties and the Guaranty made bythe other Guarantors in favor of the Secured Parties, substantially in the formof Exhibit F, together with each other guaranty and guaranty supplementdelivered pursuant to Section 6.12.

 

“Hazardous Materials” means all explosive or radioactivesubstances or wastes and all hazardous or toxic substances, wastes or otherpollutants, including petroleum or petroleum distillates, asbestos orasbestos-containing materials, polychlorinated biphenyls, radon gas, infectiousor medical wastes and all other substances or wastes of any nature regulatedpursuant to any Environmental Law.

 

“Hedge Bank” means any Person that, at the time it enters into aSecured Hedge Agreement, is a Lender or an Affiliate of a Lender, in itscapacity as a party to such Secured Hedge Agreement.

 

“Holdings” has the meaning specified in the introductoryparagraph hereto.

 

“Immaterial Subsidiary” means, at any time, any Subsidiary ofHoldings (other than the Borrower) then having net assets with a fair marketvalue of less than $5,000,000 and gross assets with a fair market value of lessthan $20,000,000; provided, that if the aggregate fair market value of(a) the net assets of all Subsidiaries of Holdings (other than the Borrower)that would otherwise constitute Immaterial Subsidiaries shall exceed$20,000,000 or (b) the gross assets of all Subsidiaries of Holdings (other thanthe Borrower) that would otherwise constitute Immaterial Subsidiaries shallexceed $50,000,000, only those such Subsidiaries as shall not then have netassets the aggregate fair market value of which is greater than $20,000,000 orgross assets the aggregate fair market value of which is greater than$50,000,000 and as shall be designated in writing by Holdings to theAdministrative Agent as Immaterial Subsidiaries shall be deemed to constituteImmaterial Subsidiaries.

 

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

 

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

 

(b)           (i) the maximum amount of all direct or contingent obligations of suchPerson arising under letters of credit (including standby and commercial),bankers’ acceptances, bank guaranties and similar instruments and (ii) themaximum amount of obligations due and payable as a result of a default arisingunder surety bonds;

 

13

----

 

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

 

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

 

(e)           indebtedness (excluding prepaid interest thereon) secured by a Lien onproperty owned or being purchased by such Person (including indebtednessarising under conditional sales or other title retention agreements), whetheror not such indebtedness shall have been assumed by such Person or is limitedin recourse;

 

(f)            capital leases and Synthetic LeaseObligations;

 

(g)           all obligations of such Person to purchase, redeem, retire, defease orotherwise make any payment in respect of any Equity Interest in such Person orany other Person or any warrant, right or option to acquire such EquityInterest, valued, in the case of a redeemable preferred interest, at thegreater of its voluntary or involuntary liquidation preference plusaccrued and unpaid dividends; and

 

(h)           all Guarantees of such Person in respect of any of the foregoing.

 

For all purposes hereof, the Indebtedness of any Person shall includethe Indebtedness of any partnership or joint venture (other than a jointventure that is itself a corporation or limited liability company) in whichsuch Person is a general partner or a joint venturer, unless such Indebtednessis expressly made non-recourse to such Person. The amount of any net obligationunder any Swap Contract on any date shall be deemed to be the Swap TerminationValue thereof as of such date. The amount of any capital lease or SyntheticLease Obligation as of any date shall be deemed to be the amount ofAttributable Indebtedness in respect thereof as of such date.

 

“Indemnified Taxes” means Taxes other than Excluded Taxes.

 

“Indemnitees” has the meaning specified in Section 11.04(b).

 

“Information” has the meaning specified in Section 11.07.

 

“Intercreditor Agreements” means those certain IntercreditorAgreements from time to time entered into among the Administrative Agent, the applicableLoan Party and the customer of such Loan Party providing surety bond(s) to suchLoan Party, each in form and substance reasonably satisfactory to theAdministrative Agent.

 

“Interest Payment Date” means, (a) as to any Loan other than aBase Rate Loan, the last day of each Interest Period applicable to such Loanand the Maturity Date; provided, however, that if any InterestPeriod for a Eurodollar Rate Loan exceeds three months, the respective datesthat fall every three months after the beginning of such Interest Period shallalso be Interest Payment Dates; and (b) as to any Base Rate Loan or a SwingLine Loan, the last Business Day of each March, June, September and Decemberand the Maturity Date (with Swing Line Loans being deemed made under theRevolving Credit Facility for purposes of this definition). .

 

“Interest Period” means, as to each Eurodollar Rate Loan, theperiod commencing on the date such Eurodollar Rate Loan is disbursed orconverted to or continued as a Eurodollar Rate Loan and ending on the date one,two, three or six months thereafter, as selected by the Borrower in its LoanNotice; provided that:

 

14

----

 

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

 

(i)            any Interest Period that begins on the lastBusiness Day of a calendar month (or on a day for which there is no numericallycorresponding day in the calendar month at the end of such Interest Period)shall end on the last Business Day of the calendar month at the end of suchInterest Period; and

 

(ii)           no Interest Period shall extend beyond theMaturity Date.

 

“Internal Control Event” means a material weakness in, or fraudthat involves management or other employees who have a significant role in,Holding’s internal controls over financial reporting, in each case as describedin the Securities Laws.

 

“Investment” means, as to any Person, any direct or indirectacquisition or investment by such Person, whether by means of (a) the purchaseor other acquisition of Equity Interests of another Person, (b) a loan, advanceor capital contribution to, Guarantee or assumption of debt of, or purchase orother acquisition of any other debt or equity participation or interest in,another Person, including any partnership or joint venture interest in suchother Person and any arrangement pursuant to which the investor GuaranteesIndebtedness of such other Person, or (c) the purchase or other acquisition (inone transaction or a series of transactions) of assets of another Person thatconstitute a business unit or all or a substantial part of the business, ofsuch Person. For purposes of covenant compliance, the amount of any Investmentshall be the amount actually invested, without adjustment for subsequentincreases or decreases in the value of such Investment.

 

“IP Rights” has the meaning specified in Section 5.17.

 

“IRS” means the United States Internal Revenue Service.

 

“ISP” means, with respect to any Letter of Credit, the“International Standby Practices 1998” published by the Institute ofInternational Banking Law & Practice (or such later version thereof as maybe in effect at the time of issuance).

 

“Issuer Documents” means with respect to any Letter of Credit,the Letter of Credit Application, and any other document, agreement andinstrument entered into by the L/C Issuer and the Borrower (or any Subsidiary)or in favor the L/C Issuer and relating to such Letter of Credit.

 

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

 

“L/C Advance” means, with respect to each Revolving CreditLender, such Lender’s funding of its participation in any L/C Borrowing inaccordance with its Applicable Revolving Credit Percentage. All L/C Advancesshall be denominated in Dollars.

 

15

----

 

“L/C Borrowing” means an extension of credit resulting from adrawing under any Letter of Credit which has not been reimbursed on the datewhen made or refinanced as a Committed Borrowing. All L/C Borrowings shall bedenominated in Dollars.

 

“L/C Credit Extension” means, with respect to any Letter ofCredit, the issuance thereof or extension of the expiry date thereof, or theincrease of the amount thereof.

 

“L/C Issuer” means Bank of America in its capacity as issuer ofLetters of Credit hereunder, or any successor issuer of Letters of Credit hereunderand, solely with respect to the Existing Letters of Credit, LaSalle BankNational Association.

 

“L/C Obligations” means, as at any date of determination, theaggregate Dollar Equivalent amount available to be drawn under all outstandingLetters of Credit plus the aggregate of all Unreimbursed Amounts,including all L/C Borrowings. For purposes of computing the amount available tobe drawn under any Letter of Credit, the amount of such Letter of Credit shallbe determined in accordance with Section 1.06. For all purposes of thisAgreement, if on any date of determination, a Letter of Credit has expired byits terms but any amount may still be drawn thereunder by reason of theoperation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be“outstanding” in the amount so remaining available to be drawn.

 

“Lender” has the meaning specified in the introductory paragraphhereto and, as the context requires, includes the Swing Line Lender.

 

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

 

“Letter of Credit” means any standby letter of credit issuedhereunder and shall include the Existing Letters of Credit. Letters of Creditmay be issued in Dollars or in an Alternative Currency.

 

“Letter of Credit Application” means an application andagreement for the issuance or amendment of a Letter of Credit in the form fromtime to time in use by the L/C Issuer.

 

“Letter of Credit Expiration Date” means the day that is fivedays prior to the Maturity Date then in effect (or, if such day is not aBusiness Day, the next preceding Business Day).

 

“Letter of Credit Fee” has the meaning specified in Section2.03(i).

 

“Letter of Credit Sublimit” means an amount equal to$100,000,000, up to the Alternative Currency Equivalent of $2,000,000 of whichmay be denominated in an Alternative Currency pursuant to Section 2.03(a)(i).The Letter of Credit Sublimit is part of, and not in addition to, the AggregateCommitments.

 

“Lien” means any mortgage, pledge, hypothecation, assignment,deposit arrangement, encumbrance, lien (statutory or other), charge, orpreference, priority or other security interest or preferential arrangement inthe nature of a security interest of any kind or nature whatsoever (includingany conditional sale or other title retention agreement, any easement, right ofway or other encumbrance on title to real property, and any financing leasehaving substantially the same economic effect as any of the foregoing).

 

16

----

 

“Loan” means an extension of credit by a Lender to the Borrowerunder Article II in the form of a Committed Loan, a Swing Line Loan or aTerm Loan.

 

“Loan Documents” means, collectively, (a) this Agreement,(b) the Notes, (c) the Guaranty, (d) the Collateral Documents, (e) the FeeLetter, (f) each Issuer Document, (g) each Secured Hedge Agreement, (h) eachSecured Cash Management Agreement, and (i) each Intercreditor Agreement; providedthat for purposes of the definition of “Material Adverse Effect”, ArticlesIV through IX and Section 11.01, “Loan Documents” shall notinclude Secured Hedge Agreements or Secured Cash Management Agreements.

 

“Loan Notice” means a notice of (a) a Committed Borrowing, (b) aconversion of Loans from one Type to the other, or (c) a continuation ofEurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing,shall be substantially in the form of Exhibit A.

 

“Loan Parties” means, collectively, the Borrower and eachGuarantor.

 

“Material Adverse Effect” means (a) a material adverse changein, or a material adverse effect upon, the operations, business, properties,liabilities (actual or contingent), financial condition or prospects of theBorrower and its Subsidiaries taken as a whole; (b) a material impairment ofthe rights and remedies of the Administrative Agent or any Lender under anyLoan Document, or of the ability of any Loan Party to perform its obligationsunder any Loan Document to which it is a party; or (c) a material adverseeffect upon the legality, validity, binding effect, in each case, as related toa Loan Party, or enforceability against any Loan Party of any Loan Document towhich it is a party.

 

“Maturity Date” means June 30, 2012 provided, however,that if such date is not a Business Day, the Maturity Date shall be the nextpreceding Business Day.

 

“Moody’s” means Moody’s Investors Service, Inc. and anysuccessor thereto.

 

“Multiemployer Plan” means any employee benefit plan of the typedescribed in Section 4001(a)(3) of ERISA, to which the Borrower or anyERISA Affiliate makes or is obligated to make contributions, or during thepreceding five plan years, has made or been obligated to make contributions.

 

“Note” means a Term Note or a Revolving Credit Note, as thecontext may require.

 

“Obligations” means all advances to, and debts, liabilities,obligations, covenants and duties of, any Loan Party arising under any LoanDocument or otherwise with respect to any Loan or Letter of Credit, whetherdirect or indirect (including those acquired by assumption), absolute orcontingent, due or to become due, now existing or hereafter arising andincluding interest and fees that accrue after the commencement by or againstany Loan Party or any Affiliate thereof of any proceeding under any DebtorRelief Laws naming such Person as the debtor in such proceeding, regardless ofwhether such interest and fees are allowed claims in such proceeding.

 

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

 

17

----

 

jurisdictionof its formation or organization and, if applicable, any certificate orarticles of formation or organization of such entity.

 

“Other Taxes” means all present or future stamp or documentarytaxes or any other excise or property taxes, charges or similar levies arisingfrom any payment made hereunder or under any other Loan Document or from theexecution, delivery or enforcement of, or otherwise with respect to, thisAgreement or any other Loan Document.

 

“Outstanding Amount” means (i) with respect to the Term Loan,Committed Loans and Swing Line Loans on any date, the aggregate outstandingprincipal amount thereof after giving effect to any borrowings and prepaymentsor repayments of the Term Loans, Committed Loans and Swing Line Loans, as thecase may be, occurring on such date; and (ii) with respect to any L/CObligations on any date, the Dollar Equivalent amount of such L/C Obligationson such date after giving effect to any L/C Credit Extension occurring on suchdate and any other changes in the aggregate amount of the L/C Obligations as ofsuch date, including as a result of any reimbursements by the Borrower ofUnreimbursed Amounts.

 

“Overnight Rate” means, for any day, (a) with respect to anyamount denominated in Dollars, the greater of (i) the Federal Funds Rate and(ii) an overnight rate determined by the Administrative Agent, the L/C Issuer,or the Swing Line Lender, as the case may be, in accordance with bankingindustry rules on interbank compensation, and (b) with respect to any amountdenominated in an Alternative Currency, the rate of interest per annum at whichovernight deposits in the applicable Alternative Currency, in an amountapproximately equal to the amount with respect to which such rate is beingdetermined, would be offered for such day by a branch or Affiliate of Bank ofAmerica in the applicable offshore interbank market for such currency to majorbanks in such interbank market.

 

“Participant” has the meaning specified in Section 11.06(d).

 

“PBGC” means the Pension Benefit Guaranty Corporation.

 

“PCAOB” means the Public Company Accounting Oversight Board.

 

“Pension Plan” means any “employee pension benefit plan” (assuch term is defined in Section 3(2) of ERISA), other than a MultiemployerPlan, that is subject to Title IV of ERISA and is sponsored or maintained bythe Borrower or any ERISA Affiliate or to which the Borrower or any ERISAAffiliate contributes or has an obligation to contribute, or in the case of amultiple employer or other plan described in Section 4064(a) of ERISA, has madecontributions at any time during the immediately preceding five plan years.

 

“Permitted Acquisition” has the meaning specified in Section7.02(h).

 

“Permitted Cost-Savings” means, in connection with any PermittedAcquisition or Investment, those demonstrable cost-savings reasonablyanticipated by the Borrower as of any date of determination to be achieved inconnection with such Permitted Acquisition or Investment, as the case may be, forthe 12-month period following the consummation of such Permitted Acquisition orInvestment, which cost-savings shall be estimated by the Borrower on a goodfaith basis as of each date of determination prior to the inclusion of theapplicable cost-savings in the calculation of Permitted Cost-Savings (which mayinclude, without limitation, those permitted under Regulation S-X of theExchange Act) and which are reasonably approved by the Administrative Agent; itis understood and agreed that, for the avoidance of duplication, no anticipatedcost-savings shall be included in the calculation of Permitted Cost-Savings forany period to the extent such anticipated cost-savings are otherwise reflectedin Consolidated Adjusted 

 

18

----

 

EBITDAfor such period by virtue of the achievement of actual cost-savings that werepart of the cost-savings anticipated to be achieved.

 

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

 

“Plan” means any “employee benefit plan” (as such term isdefined in Section 3(3) of ERISA) established by the Borrower or, with respectto any such plan that is subject to Section 412 of the Code or Title IV ofERISA, any ERISA Affiliate.

 

“Platform” has the meaning specified in Section 6.02.

 

“Pledge Agreement” means collectively or individually as thecontext may require, the Pledge Agreements, dated as of the Closing Date,executed by the Loan Parties party thereto and substantially in the form of ExhibitH, and each other Pledge Agreement at any time delivered by a Loan Party.

 

“Register” has the meaning specified in Section 11.06(c).

 

“Registered Public Accounting Firm” has the meaning specified inthe Securities Laws and shall be independent of Holdings as prescribed by theSecurities Laws.

 

“Regulated Subsidiary” means any Subsidiary of Holdings (otherthan the Borrower) so long as such Subsidiary is subject to regulation by a GovernmentalAuthority and for which the incurrence of Indebtedness (including Guarantees)would be prohibited or require the consent or approval of any GovernmentalAuthority (and such consent or approval has not been obtained), as set forth inany rule or regulation of such Governmental Authority.

 

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

 

“Reportable Event” means any of the events set forth in Section4043(c) of ERISA, other than events for which the 30 day notice period has beenwaived.

 

“Request for Credit Extension” means (a) with respect to aBorrowing, conversion or continuation of Committed Loans or Term Loans, a LoanNotice, (b) with respect to an L/C Credit Extension, a Letter of CreditApplication, and (c) with respect to a Swing Line Loan, a Swing Line LoanNotice.

 

“Required Lenders” means, as of any date of determination,Lenders holding more than 50% of the sum of the (a) Total Outstandings (withthe aggregate amount of each Revolving Credit Lender’s risk participation andfunded participation in L/C Obligations and Swing Line Loans being deemed“held” by such Revolving Credit Lender for purposes of this definition) and (b)aggregate unused Commitments; provided that the unused Commitment of,and the portion of the Total Outstandings held or deemed held by, anyDefaulting Lender shall be excluded for purposes of making a determination ofRequired Lenders.

 

“Required Revolving Lenders” means, as of any date ofdetermination, Revolving Credit Lenders holding more than 50% of the sum of the(a) Total Revolving Credit Outstandings (with the aggregate amount of eachRevolving Credit Lender’s risk participation and funded participation in L/CObligations and Swing Line Loans being deemed “held” by such Revolving CreditLender for purposes of this definition) and (b) aggregate unusedCommitments; provided that the unused Commitment of, and the 

 

19

----

 

portionof the Total Revolving Credit Outstandings held or deemed held by, anyDefaulting Lender shall be excluded for purposes of making a determination ofRequired Revolving Lenders.

 

“Responsible Officer” means the chief executive officer,president, chief financial officer, treasurer, assistant treasurer orcontroller of a Loan Party****and,any other officer of the applicable Loan Party so designated by any of theforegoing officers in a notice to the Administrative Agent. Any documentdelivered hereunder that is signed by a Responsible Officer shall beconclusively presumed to have been authorized by all necessary corporate,partnership and/or other action on the part of such Loan Party and suchResponsible Officer shall be conclusively presumed to have acted on behalf ofsuch Loan Party.

 

“Restricted Payment” means any dividend or other distribution(whether in cash, securities or other property) with respect to any capitalstock or other Equity Interest of Holdings or any Subsidiary, or any payment(whether in cash, securities or other property), including any sinking fund orsimilar deposit, on account of the purchase, redemption, retirement,acquisition, cancellation or termination of any such capital stock or otherEquity Interest, or on account of any return of capital to Holding’sstockholders, partners or members (or the equivalent Person thereof) or anyoption, warrant or other right to acquire any such dividend or otherdistribution or payment.

 

“Revaluation Date” means, with respect to any Letter of Credit,each of the following:  (i) each date ofissuance of a Letter of Credit denominated in an Alternative Currency, (ii)each date of an amendment of any such Letter of Credit having the effect ofincreasing the amount thereof (solely with respect to the increased amount),(iii) each date of any payment by the L/C Issuer under any Letter of Creditdenominated in an Alternative Currency, (iv) the last Business Day of eachcalendar month and (v) such additional dates as the Administrative Agent or theL/C Issuer shall determine.

 

“Revolving Credit Facility” means, at any time, the aggregateamount of the Revolving Credit Lenders’ Commitments at such time.

 

“Revolving Credit Lender” means, at any time, any Lender thathas a Commitment at such time.

 

“Revolving Credit Note” means a promissory note made by theBorrower in favor of a Revolving Credit Lender evidencing Committed Loans orSwing Line Loans, as the case may be, made by such Revolving Credit Lender,substantially in the form of Exhibit C-2.

 

“S&P” means Standard & Poor’s Ratings Services, adivision of The McGraw-Hill Companies, Inc. and any successor thereto.

 

“Same Day Funds” means (a) with respect to disbursements andpayments in Dollars, immediately available funds, and (b) with respect todisbursements and payments in an Alternative Currency, same day or other fundsas may be determined by the L/C Issuer to be customary in the place ofdisbursement or payment for the settlement of international bankingtransactions in the relevant Alternative Currency.

 

“Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.

 

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

 

“Secured Cash Management Agreement” means any Cash ManagementAgreement that is entered into by and between the Borrower and any CashManagement Bank.

 

20

----

 

“Secured Hedge Agreement” means any Swap Contract permittedunder Article VI or VII that is entered into by and between theBorrower and any Hedge Bank.

 

“Secured Parties” means, collectively, the Administrative Agent,the Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks, eachco-agent or sub-agent appointed by the Administrative Agent from time to timepursuant to Section 9.05, and the other Persons the Obligationsowing to which are or are purported to be secured by the Collateral under theterms of the Collateral Documents.

 

“Securities Laws” means the Securities Act of 1933, theSecurities Exchange Act of 1934, Sarbanes-Oxley and the applicable accountingand auditing principles, rules, standards and practices promulgated, approvedor incorporated by the SEC or the PCAOB.

 

“Security Agreement” means collectively or individually as thecontext may require, the Security Agreements, dated as of the Closing Date,executed by the Loan Parties party thereto and substantially in the form of ExhibitG, and each other Security Agreement at any time delivered by a Loan Party.

 

“SPC” has the meaning specified in Section 11.06(h).

 

“Spot Rate” for a currency means the rate determined by the L/CIssuer as the spot rate for the purchase by such Person of such currency withanother currency through its principal foreign exchange trading office atapproximately 11:00 a.m. on the date two Business Days prior to the date as ofwhich the foreign exchange computation is made; provided**that the Administrative Agent or the L/CIssuer may obtain such spot rate from another financial institution designatedby the Administrative Agent or the L/C Issuer if the Person acting in suchcapacity does not have as of the date of determination a spot buying rate forany such currency; and providedfurther that the L/C Issuer mayuse such spot rate quoted on the date as of which the foreign exchangecomputation is made in the case of any Letter of Credit denominated in anAlternative Currency.

 

“Solvent” and “Solvency” mean, with respect to any Personon any date of determination, that on such date (a) the fair value of theproperty of such Person is greater than the total amount of liabilities,including contingent liabilities, of such Person, (b) the present fairsalable value of the assets of such Person is not less than the amount that willbe required to pay the probable liability of such Person on its debts as theybecome absolute and matured, (c) such Person does not intend to, and doesnot believe that it will, incur debts or liabilities beyond such Person’sability to pay such debts and liabilities as they mature, (d) such Personis not engaged in business or a transaction, and is not about to engage inbusiness or a transaction, for which such Person’s property would constitute anunreasonably small capital, and (e) such Person is able to pay its debts andliabilities, contingent obligations and other commitments as they mature in theordinary course of business. The amount of contingent liabilities at any timeshall be computed as the amount that, in the light of all the facts and circumstancesexisting at such time, represents the amount that can reasonably be expected tobecome an actual or matured liability.

 

“Subordinated Debt” means any and all loans or other extensionsof credit from time to time made to any Loan Party subordinated to theObligations in a manner and form reasonably satisfactory to the AdministrativeAgent, as to right and time of payment and as to any other rights and remediesthereunder.

 

“Subsidiary” of a Person means a corporation, partnership, jointventure, limited liability company or other business entity of which a majorityof the shares of securities or other interests having ordinary voting power forthe election of directors or other governing body (other than securities orinterests having such power only by reason of the happening of a contingency)are at the time beneficially owned, or the management of which is otherwisecontrolled, directly, or indirectly through one or more 

 

21

----

 

intermediaries,or both, by such Person. Unless otherwise specified, all references herein to a“Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiariesof Holdings.

 

“Sunesys Pledge” means the pledge, by the Borrower to theAdministrative Agent, of the Equity Interests of Sunesys, Inc. pursuant to theapplicable Pledge Agreement.

 

“Surety” has the meaning specified in Section 7.01(q).

 

“Swap Contract” means (a) any and all rate swap transactions,basis swaps, credit derivative transactions, forward rate transactions,commodity swaps, commodity options, forward commodity contracts, equity orequity index swaps or options, bond or bond price or bond index swaps oroptions or forward bond or forward bond price or forward bond indextransactions, interest rate options, forward foreign exchange transactions, captransactions, floor transactions, collar transactions, currency swaptransactions, cross-currency rate swap transactions, currency options, spotcontracts, or any other similar transactions or any combination of any of theforegoing (including any options to enter into any of the foregoing), whetheror not any such transaction is governed by or subject to any master agreement,and (b) any and all transactions of any kind, and the related confirmations,which are subject to the terms and conditions of, or governed by, any form ofmaster agreement published by the International Swaps and DerivativesAssociation, Inc., any International Foreign Exchange Master Agreement, or anyother master agreement (any such master agreement, together with any relatedschedules, a “Master Agreement”), including any such obligations orliabilities under any Master Agreement.

 

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

 

“Swing Line” means the revolving credit facility made availableby the Swing Line Lender pursuant to Section 2.04.

 

“Swing Line Borrowing” means a borrowing of a Swing Line Loanpursuant to Section 2.04.

 

“Swing Line Lender” means Bank of America in its capacity asprovider of Swing Line Loans, or any successor swing line lender hereunder.

 

“Swing Line Loan” has the meaning specified in Section2.04(a).

 

“Swing Line Loan Notice” means a notice of a Swing LineBorrowing pursuant to Section 2.04(b), which, if in writing, shall besubstantially in the form of Exhibit B.

 

“Swing Line Sublimit” means an amount equal to the lesser of (a)$10,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is partof, and not in addition to, the Aggregate Commitments.

 

“Synthetic Lease Obligation” means the monetary obligation of aPerson under any lease of goods or other property, whether real or personal,which is treated by Holdings as an operating lease under GAAP and as a loan orfinancing for U.S. income tax purposes.

 

22

----

 

“Taxes” means all present or future taxes, levies, imposts,duties, deductions, withholdings, assessments, fees or other charges imposed byany Governmental Authority, including any interest, additions to tax orpenalties applicable thereto.

 

“Term Loan Borrowing” means a borrowing consisting ofsimultaneous Term Loans of the same Type and, in the case of Eurodollar RateLoans, having the same Interest Period made by each of the Term Loan Lenderspursuant to Section 2.15.

 

“Term Loan Facility” means, at any time, the aggregate principalamount of the Term Loans of all Term Loan Lenders outstanding at such time.

 

“Term Loan Lender” means any Lender that holds Term Loans atsuch time.

 

“Term Loan” means an advance made by any Lender under the TermLoan Facility, if any, pursuant to Section 2.15.

 

“Term Loan Note” means a promissory note made by theBorrower in favor of a Term Loan Lender evidencing Term Loans made by suchTerm Loan Lender, substantially in the form of Exhibit C-1.

 

“Threshold Amount” means $10,000,000.

 

“Treasury Regulations” means the income tax regulationspromulgated under the Code.

 

“Total Outstandings” means the aggregate Outstanding Amount ofall Loans and all L/C Obligations.

 

“Total Revolving Credit Outstandings” means the aggregateOutstanding Amount of all Committed Loans, Swing Line Loans and L/CObligations.

 

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

 

“UCC” means the Uniform Commercial Code as in effect in theCommonwealth of Pennsylvania; provided that, if perfection or the effectof perfection or non-perfection or the priority of any security interest in anyCollateral is governed by the Uniform Commercial Code as in effect in ajurisdiction other than the Commonwealth of Pennsylvania, “UCC” meansthe Uniform Commercial Code as in effect from time to time in such other jurisdictionfor purposes of the provisions hereof relating to such perfection, effect ofperfection or non-perfection or priority.

 

“Unfunded Pension Liability” means the amount, if any, by whichthe accumulated benefits for any Pension Plan as of the close of the mostrecent plan year, determined using actuarial assumptions at the time consistentwith those prescribed by Financial Accounting Standard No. 87, exceeds the fairmarket value of such assets allocable to such liabilities.

 

“United States” and “U.S.” mean the United States ofAmerica.

 

“Unreimbursed Amount” has the meaning specified in Section2.03(c)(i).

 

**1.02.****      ****Other InterpretiveProvisions**. With referenceto this Agreement and each other Loan Document, unless otherwise specifiedherein or in such other Loan Document:

 

23

----

 

(a)           The definitions of terms herein shall apply equally to the singular andplural forms of the terms defined. Whenever the context may require, anypronoun shall include the corresponding masculine, feminine and neuter forms.The words “include,” “includes” and “including” shall bedeemed to be followed by the phrase “without limitation.”  The word “will” shall be construed tohave the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i)any definition of or reference to any agreement, instrument or other document(including any Organization Document) shall be construed as referring to suchagreement, instrument or other document as from time to time amended,supplemented or otherwise modified (subject to any restrictions on suchamendments, supplements or modifications set forth herein or in any other LoanDocument), (ii) any reference herein to any Person shall be construed toinclude such Person’s successors and assigns, (iii) the words “herein,”“hereof” and “hereunder,” and words of similar import when usedin any Loan Document, shall be construed to refer to such Loan Document in itsentirety and not to any particular provision thereof, (iv) all references in aLoan Document to Articles, Sections, Exhibits and Schedules shall be construedto refer to Articles and Sections of, and Exhibits and Schedules to, the LoanDocument in which such references appear, (v) any reference to any law shallinclude all statutory and regulatory provisions consolidating, amending, replacingor interpreting such law and any reference to any law or regulation shall,unless otherwise specified, refer to such law or regulation as amended,modified or supplemented from time to time, and (vi) the words “asset”and “property” shall be construed to have the same meaning and effectand to refer to any and all tangible and intangible assets and properties,including cash, securities, accounts and contract rights.

 

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

 

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

 

**1.03.****      ****Accounting Terms**. (a) Generally. All accounting termsnot specifically or completely defined herein shall be construed in conformitywith, and all financial data (including financial ratios and other financialcalculations) required to be submitted pursuant to this Agreement shall beprepared in conformity with, GAAP applied on a consistent basis, as in effectfrom time to time, applied in a manner consistent with that used in preparingthe Audited Financial Statements, except as otherwise specificallyprescribed herein.

 

(b)           Changes in GAAP. If at any time any change in GAAP wouldaffect the computation of any financial ratio or requirement set forth in any LoanDocument, and either the Borrower or the Required Lenders shall so request, theAdministrative Agent, the Lenders and the Borrower shall negotiate in goodfaith to amend such ratio or requirement to preserve the original intentthereof in light of such change in GAAP (subject to the approval of theRequired Lenders); providedthat, until so amended, (i) suchratio or requirement shall continue to be computed in accordance with GAAPprior to such change therein and (ii) the Borrower shall provide to theAdministrative Agent and the Lenders a reconciliation between calculations ofsuch ratio or requirement made before and after giving effect to such change inGAAP.

 

(c)           Consolidation of Variable Interest Entities. All references herein to consolidated financialstatements of Holdings and its Subsidiaries or to the determination of anyamount for Holdings and its Subsidiaries on a consolidated basis or any similarreference shall, in each case, be deemed to include each variable interestentity that Holdings is required to consolidate pursuant to FASB 

 

24

----

 

InterpretationNo. 46 – Consolidation of Variable Interest Entities: an interpretation of ARBNo. 51 (January 2003) as if such variable interest entity were a Subsidiary asdefined herein.

 

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

 

**1.05.****      ****Times of Day**. Unless otherwise specified, all referencesherein to times of day shall be references to Eastern time (daylight orstandard, as applicable).

 

**1.06.****      ****Letter of Credit Amounts.**Unless otherwise specified herein, the amountof a Letter of Credit at any time shall be deemed to be the Dollar Equivalentof the stated amount of such Letter of Credit in effect at such time; provided,however, that with respect to any Letter of Credit that, by its terms or theterms of any Issuer Document related thereto, provides for one or moreautomatic increases in the stated amount thereof, the amount of such Letter ofCredit shall be deemed to be the Dollar Equivalent of the maximum stated amountof such Letter of Credit after giving effect to all such increases, whether ornot such maximum stated amount is in effect at such time.

 

**1.07.****      ****Exchange Rates; CurrencyEquivalents**. (a) The L/CIssuer shall determine the Spot Rates as of each Revaluation Date to be usedfor calculating Dollar Equivalent amounts of Credit Extensions and OutstandingAmounts denominated in Alternative Currencies. Such Spot Rates shall becomeeffective as of such Revaluation Date and shall be the Spot Rates employed inconverting any amounts between the applicable currencies until the nextRevaluation Date to occur. Except for purposes of financial statements deliveredby Loan Parties hereunder or calculating financial covenants hereunder orexcept as otherwise provided herein, the applicable amount of any currency(other than Dollars) for purposes of the Loan Documents shall be such DollarEquivalent amount as so determined by the L/C Issuer.

 

Wherever in this Agreement in connection with the issuance, amendmentor extension of a Letter of Credit, an amount, such as a required minimum ormultiple amount, is expressed in Dollars, but such Letter of Credit is denominatedin an Alternative Currency, such amount shall be the relevant AlternativeCurrency Equivalent of such Dollar amount (rounded to the nearest unit of suchAlternative Currency, with 0.5 of a unit being rounded upward), as determinedby the L/C Issuer.

 

**ARTICLE II.****THE COMMITMENTS AND CREDIT EXTENSIONS**

 

**2.01.****      ****Committed Loans**. Subject to the terms and conditions setforth herein, each Revolving Credit Lender severally agrees to make loans (eachsuch loan, a “Committed Loan”) to the Borrower from time to time, on anyBusiness Day during the Availability Period, in an aggregate amount not toexceed at any time outstanding the amount of such Lender’s Commitment; provided,however, that after giving effect to any Committed Borrowing, (i) theTotal Revolving Credit Outstandings shall not exceed the Aggregate Commitments,and (ii) the aggregate Outstanding Amount of the Committed Loans of anyRevolving Credit Lender, plus such Lender’s Applicable Revolving CreditPercentage of the Outstanding Amount of all L/C Obligations, plus suchLender’s Applicable Revolving Credit Percentage of the Outstanding Amount ofall Swing Line Loans shall not exceed such Lender’s Commitment. Within thelimits of each Revolving Credit Lender’s Commitment, and subject to the otherterms and conditions hereof, the Borrower may borrow under this Section 2.01,prepay under Section 2.05, and reborrow under 

 

25

----

 

thisSection 2.01. Committed Loans may be Base Rate Loans or Eurodollar RateLoans, as further provided herein.

 

**2.02.****      ****Borrowings, Conversions andContinuations of Loans**.

 

(a)           Each Borrowing, each conversion of Term Loans or Committed Loans fromone Type to the other, and each continuation of Eurodollar Rate Loans shall bemade upon the Borrower’s irrevocable notice to the Administrative Agent, whichmay be given by telephone. Each such notice must be received by theAdministrative Agent not later than 11:00 a.m. (i) three Business Days prior tothe requested date of any Borrowing of, conversion to or continuation ofEurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to BaseRate Loans and (ii) on the requested date of any Borrowing of Base Rate Loans.Each telephonic notice by the Borrower pursuant to this Section 2.02(a)must be confirmed promptly by delivery to the Administrative Agent of a writtenLoan Notice, appropriately completed and signed by a Responsible Officer of theBorrower. Each Borrowing of, conversion to or continuation of Eurodollar RateLoans shall be in a principal amount of $1,000,000 or a whole multiple of$500,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c),each Borrowing of or conversion to Base Rate Loans shall be in a principalamount of $500,000 or a whole multiple of $100,000 in excess thereof. Each LoanNotice (whether telephonic or written) shall specify (i) whether the Borroweris requesting a Borrowing, a conversion of Loans from one Type to the other, ora continuation of Eurodollar Rate Loans, (ii) the requested date of theBorrowing, conversion or continuation, as the case may be (which shall be aBusiness Day), (iii) the principal amount of Loans to be borrowed, converted orcontinued, (iv) the Type of Loans to be borrowed or to which existing Loans areto be converted, and (v) if applicable, the duration of the Interest Periodwith respect thereto. If the Borrower fails to specify a Type of Loan in a LoanNotice or if the Borrower fails to give a timely notice requesting a conversionor continuation, then the applicable Loans shall be made as, or converted to,Base Rate Loans. Any such automatic conversion to Base Rate Loans shall beeffective as of the last day of the Interest Period then in effect with respectto the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowingof, conversion to, or continuation of Eurodollar Rate Loans in any such LoanNotice, but fails to specify an Interest Period, it will be deemed to havespecified an Interest Period of one month.

 

(b)           Following receipt of a Loan Notice, the Administrative Agent shallpromptly notify each Lender of the amount of its Applicable Percentage underthe applicable Facility of the applicable Term Loans or Committed Loans, and ifno timely notice of a conversion or continuation is provided by the Borrower,the Administrative Agent shall notify each Lender of the details of anyautomatic conversion to Base Rate Loans described in the preceding subsection.In the case of a Borrowing, each Appropriate Lender shall make the amount ofits Loan available to the Administrative Agent in Same Day Funds at theAdministrative Agent’s Office not later than 1:00 p.m. on the Business Dayspecified in the applicable Loan Notice. Upon satisfaction of the applicableconditions set forth in Section 4.02 (and, if such Borrowing is theinitial Credit Extension, Section 4.01), the Administrative Agent shallmake all funds so received available to the Borrower in like funds as receivedby the Administrative Agent either by (i) crediting the account of the Borroweron the books of Bank of America with the amount of such funds or (ii) wiretransfer of such funds, in each case in accordance with instructions providedto (and reasonably acceptable to) the Administrative Agent by the Borrower; provided,however, that if, on the date the Loan Notice with respect to aCommitted Borrowing is given by the Borrower, there are L/C Borrowingsoutstanding, then the proceeds of such Committed Borrowing, first, shallbe applied to the payment in full of any such L/C Borrowings, and second,shall be made available to the Borrower as provided above.

 

(c)           Except as otherwise provided herein, a Eurodollar Rate Loan may becontinued or converted only on the last day of an Interest Period for suchEurodollar Rate Loan. During the existence 

 

26

----

 

ofa Default, no Loans may be requested as, converted to or continued asEurodollar Rate Loans without the consent of the Required Lenders.

 

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

 

(e)           After giving effect to all Borrowings, all conversions of Loans fromone Type to the other, and all continuations of Loans as the same Type, thereshall not be more than****ten****Interest Periods in effect with respect toLoans.

 

**2.03.****      ****Letters of Credit.**

 

(a)           The Letter of Credit Commitment.

 

(i)            Subject to the terms and conditions set forthherein, (A) the L/C Issuer agrees, in reliance upon the agreements of theRevolving Credit Lenders set forth in this Section 2.03, (1) from timeto time on any Business Day during the period from the Closing Date until theLetter of Credit Expiration Date, to issue Letters of Credit for the account ofthe Borrower or its Subsidiaries, and to amend or extend Letters of Creditpreviously issued by it, in accordance with subsection (b) below, and (2) tohonor drawings under the Letters of Credit; and (B) the Revolving Credit Lendersseverally agree to participate in Letters of Credit issued for the account ofthe Borrower or its Subsidiaries and any drawings thereunder; providedthat after giving effect to any L/C Credit Extension with respect to any Letterof Credit, (x) the Total Revolving Credit Outstandings shall not exceed theAggregate Commitments, (y) the aggregate Outstanding Amount of the CommittedLoans of any Revolving Credit Lender, plus such Lender’s ApplicableRevolving Credit Percentage of the Outstanding Amount of all L/C Obligations, plussuch Lender’s Applicable Revolving Credit Percentage of the Outstanding Amountof all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) theOutstanding Amount of the L/C Obligations shall not exceed the Letter of CreditSublimit. Subject to the other terms and conditions set forth herein, theBorrower may request, for its own account or the account of a Subsidiary, theissuance of such Letters of Credit in an Alternative Currency; provided,however, that, in addition to the other conditions to the issuance of Lettersof Credit set forth in this Section 2.03(a)(i), after giving effect tosuch request, the Dollar Equivalent of the Foreign LC Exposure shall not exceed$2,000,000 at any one time. Such Letters of Credit issued in an AlternativeCurrency hereunder shall constitute utilization of the Aggregate Commitments inthe amount of the Dollar Equivalent of such Letter of Credit. Each request bythe Borrower for the issuance or amendment of a Letter of Credit shall be deemedto be a representation by the Borrower that the L/C Credit Extension sorequested complies with the conditions set forth in the provisos to thepreceding two sentences. Within the foregoing limits, and subject to the termsand conditions hereof, the Borrower’s ability to obtain Letters of Credit shallbe fully revolving, and accordingly the Borrower may, during the foregoingperiod, obtain Letters of Credit to replace Letters of Credit that have expiredor that have been drawn upon and reimbursed. All Existing Letters of Creditshall be deemed to have been issued pursuant hereto, and from and after theClosing Date shall be subject to and governed by the terms and conditionshereof; provided that, on or before the date that is ninety (90) days after theClosing Date, the Borrower shall cause the Existing Letters of Credit to becancelled and, if necessary, re-issued as Letters of Credit hereunder.

 

27

----

 

(ii)           The L/C Issuer shall not issue any Letter ofCredit, if:

 

(A)          subject to Section 2.03(b)(iii), the expirydate of such requested Letter of Credit would occur more than twelve monthsafter the date of issuance or last extension, unless the Required RevolvingLenders have approved such expiry date; or

 

(B)           the expiry date of such requested Letter ofCredit would occur after the Letter of Credit Expiration Date, unless all theRevolving Credit Lenders have approved such expiry date.

 

(iii)          The L/C Issuer shall not be under anyobligation to issue any Letter of Credit if:

 

(A)          any order, judgment or decree of anyGovernmental Authority or arbitrator shall by its terms purport to enjoin orrestrain the L/C Issuer from issuing such Letter of Credit, or any Lawapplicable to the L/C Issuer or any request or directive (whether or not havingthe force of law) from any Governmental Authority with jurisdiction over theL/C Issuer shall prohibit, or request that the L/C Issuer refrain from, theissuance of letters of credit generally or such Letter of Credit in particularor shall impose upon the L/C Issuer with respect to such Letter of Credit anyrestriction, reserve or capital requirement (for which the L/C Issuer is nototherwise compensated hereunder) not in effect on the Closing Date, or shallimpose upon the L/C Issuer any unreimbursed loss, cost or expense which was notapplicable on the Closing Date and which the L/C Issuer in good faith deemsmaterial to it;

 

(B)           the issuance of such Letter of Credit wouldviolate one or more policies of general applicability of the L/C Issuerapplicable to letters of credit generally;

 

(C)           except as otherwise agreed by theAdministrative Agent and the L/C Issuer, such Letter of Credit is in an initialstated amount less than $100,000;

 

(D)          such Letter of Credit is to be denominated ina currency other than Dollars or an Alternative Currency;

 

(E)           such Letter of Credit contains any provisionsfor automatic reinstatement of the stated amount after any drawing thereunder;

 

(F)           a default of any Lender’s obligations to fundunder Section 2.03(c) exists or any Lender is at such time a DefaultingLender hereunder, unless the L/C Issuer has entered into satisfactoryarrangements with the Borrower or such Lender to eliminate the L/C Issuer’srisk with respect to such Lender (it being understood that the L/C Issuer wouldconsider the Borrower providing Cash Collateral to the Administrative Agent,for the benefit of the L/C Issuer, to secure the Defaulting Lender’s pro ratashare of the Letter of Credit a satisfactory arrangement); or

 

(G)           the L/C Issuer does not as of the issuancedate of such requested Letter of Credit issue Letters of Credit in therequested currency.

 

(iv)          If the Borrower requests any amendment to aLetter of Credit, the L/C Issuer shall not so amend such Letter of Credit ifthe L/C Issuer would not be permitted at such time to issue such Letter ofCredit in its amended form under the terms hereof.

 

28

----

 

(v)           The L/C Issuer shall be under no obligationto amend any Letter of Credit if (A) the L/C Issuer would have no obligation atsuch time to issue such Letter of Credit in its amended form under the termshereof, or (B) the beneficiary of such Letter of Credit does not accept theproposed amendment to such Letter of Credit.

 

(vi)          The L/C Issuer shall act on behalf of theRevolving Credit Lenders with respect to any Letters of Credit issued by it andthe documents associated therewith, and the L/C Issuer shall have all of thebenefits and immunities (A) provided to the Administrative Agent by theLenders in Article IX with respect to any acts taken or omissionssuffered by the L/C Issuer in connection with Letters of Credit issued by it orproposed to be issued by it and Issuer Documents pertaining to such Letters ofCredit as fully as if the term “Administrative Agent” as used in Article IXincluded the L/C Issuer with respect to such acts or omissions, and (B) asadditionally provided herein with respect to the L/C Issuer.

 

(b)           Procedures for Issuance and Amendment of Letters of Credit;Auto-Extension Letters of Credit.

 

(i)            Each Letter of Credit shall be issued oramended, as the case may be, upon the request of the Borrower delivered to theL/C Issuer (with a copy to the Administrative Agent) in the form of a Letter ofCredit Application, appropriately completed and signed by a Responsible Officerof the Borrower. Such Letter of Credit Application must be received by the L/CIssuer and the Administrative Agent not later than 11:00 a.m. at least twoBusiness Days (or such later date and time as the Administrative Agent and theL/C Issuer may agree in a particular instance in their sole discretion) priorto the proposed issuance date or date of amendment, as the case may be. In thecase of a request for an initial issuance of a Letter of Credit, such Letter ofCredit Application shall specify in form and detail satisfactory to the L/CIssuer: (A) the proposed issuance date of the requested Letter of Credit (whichshall be a Business Day); (B) the amount and currency thereof; (C) the expirydate thereof; (D) the name and address of the beneficiary thereof; (E) thedocuments to be presented by such beneficiary in case of any drawingthereunder; (F) the full text of any certificate to be presented by suchbeneficiary in case of any drawing thereunder; and (G) such other matters asthe L/C Issuer may require. In the case of a request for an amendment of anyoutstanding Letter of Credit, such Letter of Credit Application shall specifyin form and detail satisfactory to the L/C Issuer (A) the Letter of Credit tobe amended; (B) the proposed date of amendment thereof (which shall be aBusiness Day); (C) the nature of the proposed amendment; and (D) such othermatters as the L/C Issuer may require. Additionally, the Borrower shall furnishto the L/C Issuer and the Administrative Agent such other documents andinformation pertaining to such requested Letter of Credit issuance oramendment, including any Issuer Documents, as the L/C Issuer or theAdministrative Agent may require.

 

(ii)           Promptly after receipt of any Letter ofCredit Application, the L/C Issuer will confirm with the Administrative Agent(by telephone or in writing) that the Administrative Agent has received a copyof such Letter of Credit Application from the Borrower and, if not, the L/CIssuer will provide the Administrative Agent with a copy thereof. Unless theL/C Issuer has received written notice from any Revolving Credit Lender, theAdministrative Agent or any Loan Party, at least one Business Day prior to therequested date of issuance or amendment of the applicable Letter of Credit,that one or more applicable conditions contained in Article IV shall notthen be satisfied, then, subject to the terms and conditions hereof, the L/CIssuer shall, on the requested date, issue a Letter of Credit for the accountof the Borrower or the applicable Subsidiary or enter into the applicableamendment, as the case may be, in each case in accordance with the L/C Issuer’susual and customary business practices. Immediately upon the issuance of 

 

29

----

 

each Letter of Credit, each Revolving Credit Lender shall be deemed to,and hereby irrevocably and unconditionally agrees to, purchase from the L/CIssuer a risk participation in such Letter of Credit in an amount equal to theproduct of such Lender’s Applicable Revolving Credit Percentage timesthe amount of such Letter of Credit.

 

(iii)          If the Borrower so requests in any applicableLetter of Credit Application, the L/C Issuer may, in its sole and absolutediscretion, agree to issue a Letter of Credit that has automatic extensionprovisions (each, an “Auto-Extension Letter of Credit”); providedthat any such Auto-Extension Letter of Credit must permit the L/C Issuer toprevent any such extension at least once in each twelve-month period(commencing with the date of issuance of such Letter of Credit) by giving priornotice to the beneficiary thereof not later than a day (the “Non-ExtensionNotice Date”) in each such twelve-month period to be agreed upon at thetime such Letter of Credit is issued. Unless otherwise directed by the L/CIssuer, the Borrower shall not be required to make a specific request to theL/C Issuer for any such extension. Once an Auto-Extension Letter of Credit hasbeen issued, the Revolving Credit Lenders shall be deemed to have authorized(but may not require) the L/C Issuer to permit the extension of such Letter ofCredit at any time to an expiry date not later than the Letter of CreditExpiration Date; provided, however, that the L/C Issuer shall notpermit any such extension if (A) the L/C Issuer has determined that it wouldnot be permitted, or would have no obligation, at such time to issue suchLetter of Credit in its revised form (as extended) under the terms hereof (byreason of the provisions of clause (ii) or (iii) of Section 2.03(a) orotherwise), or (B) it has received notice (which may be by telephone or inwriting) on or before the day that is five Business Days before theNon-Extension Notice Date (1) from the Administrative Agent that the RequiredRevolving Lenders have elected not to permit such extension or (2) from theAdministrative Agent, any Revolving Credit Lender or the Borrower that one ormore of the applicable conditions specified in Section 4.02 is not thensatisfied, and in each such case directing the L/C Issuer not to permit suchextension.

 

(iv)          Promptly after its delivery of any Letter ofCredit or any amendment to a Letter of Credit to an advising bank with respectthereto or to the beneficiary thereof, the L/C Issuer will also deliver to theBorrower and the Administrative Agent a true and complete copy of such Letterof Credit or amendment.

 

(c)           Drawings and Reimbursements; Funding ofParticipations.

 

(i)            Upon receipt from the beneficiary of anyLetter of Credit of any notice of a drawing under such Letter of Credit, theL/C Issuer shall notify the Borrower and the Administrative Agent thereof. Inthe case of a Letter of Credit denominated in an Alternative Currency, theBorrower shall reimburse the L/C Issuer in such Alternative Currency, unlessthe L/C Issuer (at its option) shall have specified in such notice that it willrequire reimbursement in Dollars. In the case of any such reimbursement inDollars of a drawing under a Letter of Credit denominated in an AlternativeCurrency, the L/C Issuer shall notify the Borrower of the Dollar Equivalent ofthe amount of the drawing promptly following the determination thereof. Notlater than 11:00 a.m. on the date of any payment by the L/C Issuer under aLetter of Credit to be reimbursed in Dollars (in the event that the Borrowerhas been notified prior to 10:00 a.m. on such day and otherwise not later than11:00 a.m. on the next Business Day), or the Applicable Time on the date of anypayment by the L/C Issuer under a Letter of Credit to be reimbursed in anAlternative Currency (each such date, an “Honor Date”), the Borrowershall reimburse the L/C Issuer through the Administrative Agent in an amountequal to the amount of such drawing and in the applicable currency (i.e.,Dollars or Canadian dollars). If the Borrower fails to so reimburse the L/CIssuer by such time, the Administrative Agent shall promptly notify eachRevolving 

 

30

----

 

Credit Lender of the Honor Date, the amount of the unreimbursed drawing(expressed in Dollars in the amount of the Dollar Equivalent thereof in thecase of a Letter of Credit denominated in an Alternative Currency) (the “UnreimbursedAmount”), and the amount of such Revolving Credit Lender’s ApplicableRevolving Credit Percentage thereof. In such event, the Borrower shall bedeemed to have requested a Committed Borrowing of Base Rate Loans to bedisbursed on the Honor Date in an amount equal to the Unreimbursed Amount,without regard to the minimum and multiples specified in Section 2.02for the principal amount of Base Rate Loans, but subject to the amount of theunutilized portion of the Aggregate Commitments and the conditions set forth inSection 4.02 (other than the delivery of a Loan Notice). Any noticegiven by the L/C Issuer or the Administrative Agent pursuant to this Section2.03(c)(i) may be given by telephone if immediately confirmed in writing; providedthat the lack of such an immediate confirmation shall not affect the conclusivenessor binding effect of such notice.

 

(ii)           Each Revolving Credit Lender shall upon anynotice pursuant to Section 2.03(c)(i) make funds available to theAdministrative Agent for the account of the L/C Issuer, in Dollars, at theAdministrative Agent’s Office in an amount equal to its Applicable RevolvingCredit Percentage of the Unreimbursed Amount not later than 1:00 p.m. on theBusiness Day specified in such notice by the Administrative Agent, whereupon,subject to the provisions of Section 2.03(c)(iii), each Revolving CreditLender that so makes funds available shall be deemed to have made a Base RateLoan to the Borrower in such amount. The Administrative Agent shall remit thefunds so received to the L/C Issuer in Dollars.

 

(iii)          With respect to any Unreimbursed Amount thatis not fully refinanced by a Committed Borrowing of Base Rate Loans because theconditions set forth in Section 4.02 cannot be satisfied or for anyother reason, the Borrower shall be deemed to have incurred from the L/C Issueran L/C Borrowing in the amount of the Unreimbursed Amount that is not sorefinanced, which L/C Borrowing shall be due and payable on demand (togetherwith interest) and shall bear interest at the Default Rate. In such event, eachRevolving Credit Lender’s payment to the Administrative Agent for the accountof the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemedpayment in respect of its participation in such L/C Borrowing and shallconstitute an L/C Advance from such Lender in satisfaction of its participationobligation under this Section 2.03.

 

(iv)          Until each Revolving Credit Lender funds itsCommitted Loan or L/C Advance pursuant to this Section 2.03(c) toreimburse the L/C Issuer for any amount drawn under any Letter of Credit,interest in respect of such Lender’s Applicable Revolving Credit Percentage ofsuch amount shall be solely for the account of the L/C Issuer.

 

(v)           Each Revolving Credit Lender’s obligation tomake Committed Loans or L/C Advances to reimburse the L/C Issuer for amountsdrawn under Letters of Credit, as contemplated by this Section 2.03(c),shall be absolute and unconditional and shall not be affected by anycircumstance, including (A) any setoff, counterclaim, recoupment, defense orother right which such Lender may have against the L/C Issuer, the Borrower orany other Person for any reason whatsoever; (B) the occurrence or continuanceof a Default, or (C) any other occurrence, event or condition, whether or notsimilar to any of the foregoing; provided, however, that each RevolvingCredit Lender’s obligation to make Committed Loans pursuant to this Section2.03(c) is subject to the conditions set forth in Section 4.02(other than delivery by the Borrower of a Loan Notice). No such making of anL/C Advance shall relieve or otherwise impair the obligation of the Borrower toreimburse the L/C Issuer for the amount of any payment made by the L/C Issuerunder any Letter of Credit, together with interest as provided herein.

 

31

----

 

(vi)          If any Revolving Credit Lender fails to makeavailable to the Administrative Agent for the account of the L/C Issuer anyamount required to be paid by such Lender pursuant to the foregoing provisionsof this Section 2.03(c) by the time specified in Section 2.03(c)(ii),the L/C Issuer shall be entitled to recover from such Lender (acting throughthe Administrative Agent), on demand, such amount with interest thereon for theperiod from the date such payment is required to the date on which such paymentis immediately available to the L/C Issuer at a rate per annum equal to theapplicable Overnight Rate from time to time in effect, plus any administrative,processing or similar fees customarily charged by the L/C Issuer in connectionwith the foregoing. If such Lender pays such amount (with interest and fees asaforesaid), the amount so paid shall constitute such Lender’s Committed Loanincluded in the relevant Committed Borrowing or L/C Advance in respect of therelevant L/C Borrowing, as the case may be. A certificate of the L/C Issuersubmitted to any Revolving Credit Lender (through the Administrative Agent)with respect to any amounts owing under this clause (vi) shall be conclusiveabsent manifest error.

 

(d)           Repayment of Participations.

 

(i)            At any time after the L/C Issuer has made apayment under any Letter of Credit and has received from any Revolving CreditLender such Lender’s L/C Advance in respect of such payment in accordance with Section2.03(c), if the Administrative Agent receives for the account of the L/CIssuer any payment in respect of the related Unreimbursed Amount or interestthereon (whether directly from the Borrower or otherwise, including proceeds ofCash Collateral applied thereto by the Administrative Agent), theAdministrative Agent will distribute to such Lender its Applicable RevolvingCredit Percentage thereof in Dollars and in the same funds as those received bythe Administrative Agent.

 

(ii)           If any payment received by the AdministrativeAgent for the account of the L/C Issuer pursuant to Section 2.03(c)(i)is required to be returned under any of the circumstances described in Section11.05 (including pursuant to any settlement entered into by the L/C Issuerin its discretion), each Revolving Credit Lender shall pay to the AdministrativeAgent for the account of the L/C Issuer its Applicable Revolving CreditPercentage thereof on demand of the Administrative Agent, plus interest thereonfrom the date of such demand to the date such amount is returned by suchLender, at a rate per annum equal to the applicable Overnight Rate from time totime in effect. The obligations of the Lenders under this clause shall survivethe payment in full of the Obligations and the termination of this Agreement.

 

(e)           Obligations Absolute. The obligation of the Borrower to reimbursethe L/C Issuer for each drawing under each Letter of Credit and to repay eachL/C Borrowing shall be absolute, unconditional and irrevocable, and shall bepaid strictly in accordance with the terms of this Agreement under allcircumstances, including the following:

 

(i)            any lack of validity or enforceability ofsuch Letter of Credit, this Agreement, or any other Loan Document;

 

(ii)           the existence of any claim, counterclaim,setoff, defense or other right that the Borrower or any Subsidiary may have atany time against any beneficiary or any transferee of such Letter of Credit (orany Person for whom any such beneficiary or any such transferee may be acting),the L/C Issuer or any other Person, whether in connection with this Agreement,the transactions contemplated hereby or by such Letter of Credit or anyagreement or instrument relating thereto, or any unrelated transaction;

 

32

----

 

(iii)          any draft, demand, certificate or other documentpresented under such Letter of Credit proving to be forged, fraudulent, invalidor insufficient in any respect or any statement therein being untrue orinaccurate in any respect; or any loss or delay in the transmission orotherwise of any document required in order to make a drawing under such Letterof Credit;

 

(iv)          any payment by the L/C Issuer under suchLetter of Credit against presentation of a draft or certificate that does notstrictly comply with the terms of such Letter of Credit; or any payment made bythe L/C Issuer under such Letter of Credit to any Person purporting to be atrustee in bankruptcy, debtor-in-possession, assignee for the benefit ofcreditors, liquidator, receiver or other representative of or successor to anybeneficiary or any transferee of such Letter of Credit, including any arisingin connection with any proceeding under any Debtor Relief Law;

 

(v)           any other circumstance or happeningwhatsoever, whether or not similar to any of the foregoing, including any othercircumstance that might otherwise constitute a defense available to, or adischarge of, the Borrower or any Subsidiary; or

 

(vi)          any adverse change in the relevant exchangerates or in the availability of the relevant Alternative Currency to theBorrower or any Subsidiary or in the relevant currency markets generally.

 

The Borrower shall promptly examine a copy of each Letter of Credit andeach amendment thereto that is delivered to it and, in the event of any claimof noncompliance with the Borrower’s instructions or other irregularity, theBorrower will immediately notify the L/C Issuer. The Borrower shall beconclusively deemed to have waived any such claim against the L/C Issuer andits correspondents unless such notice is given as aforesaid.

 

(f)            Role of L/C Issuer. Each Lender and the Borrower agree that, inpaying any drawing under a Letter of Credit, the L/C Issuer shall not have anyresponsibility to obtain any document (other than any sight draft, certificatesand documents expressly required by the Letter of Credit) or to ascertain orinquire as to the validity or accuracy of any such document or the authority ofthe Person executing or delivering any such document. None of the L/C Issuer,the Administrative Agent, any of their respective Related Parties nor anycorrespondent, participant or assignee of the L/C Issuer shall be liable to anyLender for (i) any action taken or omitted in connection herewith at therequest or with the approval of the Revolving Credit Lenders or the RequiredRevolving Lenders, as applicable; (ii) any action taken or omitted in theabsence of gross negligence or willful misconduct; or (iii) the due execution,effectiveness, validity or enforceability of any document or instrument relatedto any Letter of Credit or Issuer Document. The Borrower hereby assumes allrisks of the acts or omissions of any beneficiary or transferee with respect toits use of any Letter of Credit; provided, however, that thisassumption is not intended to, and shall not, preclude the Borrower’s pursuingsuch rights and remedies as it may have against the beneficiary or transfereeat law or under any other agreement. None of the L/C Issuer, the AdministrativeAgent, any of their respective Related Parties nor any correspondent,participant or assignee of the L/C Issuer shall be liable or responsible forany of the matters described in clauses (i) through (v) of Section 2.03(e);provided, however, that anything in such clauses to the contrarynotwithstanding, the Borrower may have a claim against the L/C Issuer, and theL/C Issuer may be liable to the Borrower, to the extent, but only to theextent, of any direct, as opposed to consequential or exemplary, damagessuffered by the Borrower which were caused by the L/C Issuer’s willfulmisconduct or gross negligence or the L/C Issuer’s willful failure to pay underany Letter of Credit after the presentation to it by the beneficiary of a sightdraft and certificate(s) strictly complying with the terms and conditions of aLetter of Credit. In furtherance and not in limitation of the foregoing, theL/C Issuer may accept documents that appear on their face to be in order,without responsibility for further investigation, 

 

33

----

 

regardlessof any notice or information to the contrary, and the L/C Issuer shall not beresponsible for the validity or sufficiency of any instrument transferring orassigning or purporting to transfer or assign a Letter of Credit or the rightsor benefits thereunder or proceeds thereof, in whole or in part, which mayprove to be invalid or ineffective for any reason.

 

(g)           Cash Collateral. Upon the request of the AdministrativeAgent, (i) if the L/C Issuer has honored any full or partial drawing requestunder any Letter of Credit and such drawing has resulted in an L/C Borrowing,or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation forany reason remains outstanding, the Borrower shall, in each case, immediatelyCash Collateralize the then Outstanding Amount of all L/C Obligations. Sections2.05 and 8.02(c) set forth certain additional requirements todeliver Cash Collateral hereunder. For purposes of this Section 2.03, Section2.05****and Section 8.02(c),“Cash Collateralize” means to pledge and deposit with or deliver to theAdministrative Agent, for the benefit of the L/C Issuer and the Lenders, ascollateral for the L/C Obligations, cash or deposit account balances pursuantto documentation in form and substance satisfactory to the Administrative Agentand the L/C Issuer (which documents are hereby consented to by the Lenders).Derivatives of such term have corresponding meanings. The Borrower herebygrants to the Administrative Agent, for the benefit of the L/C Issuer and theLenders, a security interest in all such cash, deposit accounts and allbalances therein and all proceeds of the foregoing. Cash Collateral shall bemaintained in blocked, non-interest bearing deposit accounts at Bank ofAmerica. If at any time the Administrative Agent determines that any funds heldas Cash Collateral are subject to any right or claim of any Person other thanthe Administrative Agent or that the total amount of such funds is less thanthe aggregate Outstanding Amount of all L/C Obligations, the Borrower will,forthwith upon demand by the Administrative Agent, pay to the AdministrativeAgent, as additional funds to be deposited as Cash Collateral, an amount equalto the excess of (x) such aggregate Outstanding Amount over (y) thetotal amount of funds, if any, then held as Cash Collateral that the AdministrativeAgent determines to be free and clear of any such right and claim. Upon thedrawing of any Letter of Credit for which funds are on deposit as CashCollateral, such funds shall be applied, to the extent permitted underapplicable Laws, to reimburse the L/C Issuer.

 

(h)           Applicability of ISP. Unless otherwise expressly agreed by theL/C Issuer and the Borrower when a Letter of Credit is issued (including anysuch agreement applicable to an Existing Letter of Credit), the rules of theISP shall apply to each Letter of Credit.

 

(i)            Letter of Credit Fees. The Borrower shall pay to theAdministrative Agent for the account of each Revolving Credit Lender inaccordance with its Applicable Revolving Credit Percentage a Letter of Creditfee (the “Letter of Credit Fee”) for each Letter of Credit equal to theApplicable Rate times the Dollar Equivalent of the daily amountavailable to be drawn under such Letter of Credit. For purposes of computingthe daily amount available to be drawn under any Letter of Credit, the amountof such Letter of Credit shall be determined in accordance with Section 1.06.Letter of Credit Fees shall be (i) due and payable on the third Business Dayafter the end of each March, June, September and December, commencing with thefirst such date to occur after the issuance of such Letter of Credit, on theLetter of Credit Expiration Date and thereafter on demand and (ii) computed ona quarterly basis in arrears. If there is any change in the Applicable Rateduring any quarter, the daily amount available to be drawn under each Letter ofCredit shall be computed and multiplied by the Applicable Rate separately foreach period during such quarter that such Applicable Rate was in effect.Notwithstanding anything to the contrary contained herein, upon the request ofthe Required Lenders, while any Event of Default exists, all Letter of CreditFees shall accrue at the Default Rate.

 

(j)            Fronting Fee and Documentary and ProcessingCharges Payable to L/C Issuer.The Borrower shall pay directly to the L/C Issuer for its own account afronting fee with respect to each Letter 

 

34

----

 

ofCredit, at the rate per annum specified in the Fee Letter, computed on theDollar Equivalent of the daily amount available to be drawn under such Letterof Credit on a quarterly basis in arrears. Such fronting fee shall be due andpayable on the third Business Day after the end of each March, June, Septemberand December in respect of the most recently-ended quarterly period (or portionthereof, in the case of the first payment), commencing with the first such dateto occur after the issuance of such Letter of Credit, on the Letter of CreditExpiration Date and thereafter on demand. For purposes of computing the dailyamount available to be drawn under any Letter of Credit, the amount of suchLetter of Credit shall be determined in accordance with Section 1.06. Inaddition, the Borrower shall pay directly to the L/C Issuer for its ownaccount, in Dollars, the customary issuance, presentation, amendment and otherprocessing fees, and other standard costs and charges, of the L/C Issuerrelating to letters of credit as from time to time in effect. Such customaryfees and standard costs and charges are due and payable on demand and arenonrefundable.

 

(k)           Conflict with Issuer Documents. In the event of any conflict between theterms hereof and the terms of any Issuer Document, the terms hereof shallcontrol.

 

(l)            Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Creditissued or outstanding hereunder is in support of any obligations of, or is forthe account of, a Subsidiary of the Borrower, the Borrower shall be obligatedto reimburse the L/C Issuer hereunder for any and all drawings under suchLetter of Credit. The Borrower hereby acknowledges that the issuance of Lettersof Credit for the account of Subsidiaries of the Borrower inures to the benefitof the Borrower, and that the Borrower’s business derives substantial benefitsfrom the businesses of such Subsidiaries.

 

**2.04.****      ****Swing Line Loans**.

 

(a)           The Swing Line. Subject to the terms and conditions setforth herein, the Swing Line Lender agrees, in reliance upon the agreements ofthe other Lenders set forth in this Section 2.04, to make loans (eachsuch loan, a “Swing Line Loan”) to the Borrower from time to time on anyBusiness Day during the Availability Period in an aggregate amount not toexceed at any time outstanding the amount of the Swing Line Sublimit,notwithstanding the fact that such Swing Line Loans, when aggregated with theApplicable Revolving Credit Percentage of the Outstanding Amount of CommittedLoans and L/C Obligations of the Lender acting as Swing Line Lender, may exceedthe amount of such Lender’s Commitment; provided, however, thatafter giving effect to any Swing Line Loan, (i) the Total Revolving CreditOutstandings shall not exceed the Aggregate Commitments, and (ii) the aggregateOutstanding Amount of the Committed Loans of any Revolving Credit Lender, plussuch Revolving Credit Lender’s Applicable Revolving Credit Percentage of theOutstanding Amount of all L/C Obligations, plus such Revolving CreditLender’s Applicable Revolving Credit Percentage of the Outstanding Amount ofall Swing Line Loans shall not exceed such Lender’s Commitment, and provided,further, that the Borrower shall not use the proceeds of any Swing LineLoan to refinance any outstanding Swing Line Loan. Within the foregoing limits,and subject to the other terms and conditions hereof, the Borrower may borrowunder this Section 2.04, prepay under Section 2.05, and reborrowunder this Section 2.04. Each Swing Line Loan shall bear interest onlyat a rate based on the Base Rate. Immediately upon the making of a Swing LineLoan, each Revolving Credit Lender shall be deemed to, and hereby irrevocablyand unconditionally agrees to, purchase from the Swing Line Lender a riskparticipation in such Swing Line Loan in an amount equal to the product of suchRevolving Credit Lender’s Applicable Revolving Credit Percentage timesthe amount of such Swing Line Loan.

 

(b)           Borrowing Procedures. Each Swing Line Borrowing shall be madeupon the Borrower’s irrevocable notice to the Swing Line Lender and theAdministrative Agent, which may be given by telephone. Each such notice must bereceived by the Swing Line Lender and the Administrative Agent not 

 

35

----

 

laterthan 1:00 p.m. on the requested borrowing date, and shall specify (i) theamount to be borrowed, which shall be a minimum of $500,000 and (ii) therequested borrowing date, which shall be a Business Day. Each such telephonicnotice must be confirmed promptly by delivery to the Swing Line Lender and theAdministrative Agent of a written Swing Line Loan Notice, appropriately completedand signed by a Responsible Officer of the Borrower. Promptly after receipt bythe Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing LineLender will confirm with the Administrative Agent (by telephone or in writing)that the Administrative Agent has also received such Swing Line Loan Noticeand, if not, the Swing Line Lender will notify the Administrative Agent (bytelephone or in writing) of the contents thereof. Unless the Swing Line Lenderhas received notice (by telephone or in writing) from the Administrative Agent(including at the request of any Revolving Credit Lender) prior to 2:00 p.m. onthe date of the proposed Swing Line Borrowing (A) directing the Swing LineLender not to make such Swing Line Loan as a result of the limitations setforth in the proviso to the first sentence of Section 2.04(a), or (B)that one or more of the applicable conditions specified in Article IV isnot then satisfied, then, subject to the terms and conditions hereof, the SwingLine Lender will, not later than 3:00 p.m. on the borrowing date specified insuch Swing Line Loan Notice, make the amount of its Swing Line Loan availableto the Borrower at its office by crediting the account of the Borrower on thebooks of the Swing Line Lender in Same Day Funds.

 

(c)           Refinancing of Swing Line Loans.

 

(i)            The Swing Line Lender at any time in its soleand absolute discretion may request, on behalf of the Borrower (which herebyirrevocably authorizes the Swing Line Lender to so request on its behalf), thateach Revolving Credit Lender make a Base Rate Loan in an amount equal to suchLender’s Applicable Revolving Credit Percentage of the amount of Swing LineLoans then outstanding. Such request shall be made in writing (which writtenrequest shall be deemed to be a Loan Notice for purposes hereof) and inaccordance with the requirements of Section 2.02, without regard to theminimum and multiples specified therein for the principal amount of Base RateLoans, but subject to the unutilized portion of the Aggregate Commitments andthe conditions set forth in Section 4.02. The Swing Line Lender shallfurnish the Borrower with a copy of the applicable Loan Notice promptly afterdelivering such notice to the Administrative Agent. Each Revolving CreditLender shall make an amount equal to its Applicable Revolving Credit Percentageof the amount specified in such Loan Notice available to the AdministrativeAgent in Same Day Funds for the account of the Swing Line Lender at theAdministrative Agent’s Office not later than 1:00 p.m. on the day specified insuch Loan Notice, whereupon, subject to Section 2.04(c)(ii), eachRevolving Credit Lender that so makes funds available shall be deemed to havemade a Base Rate Loan to the Borrower in such amount. The Administrative Agentshall remit the funds so received to the Swing Line Lender.

 

(ii)           If for any reason any Swing Line Loan cannotbe refinanced by such a Committed Borrowing in accordance with Section2.04(c)(i), the request for Base Rate Loans submitted by the Swing LineLender as set forth herein shall be deemed to be a request by the Swing LineLender that each of the Revolving Credit Lenders fund its risk participation inthe relevant Swing Line Loan and each Revolving Credit Lender’s payment to theAdministrative Agent for the account of the Swing Line Lender pursuant to Section2.04(c)(i) shall be deemed payment in respect of such participation.

 

(iii)          If any Revolving Credit Lender fails to makeavailable to the Administrative Agent for the account of the Swing Line Lenderany amount required to be paid by such Lender pursuant to the foregoingprovisions of this Section 2.04(c) by the time specified in Section2.04(c)(i), the Swing Line Lender shall be entitled to recover from suchLender (acting through 

 

36

----

 

the Administrative Agent), on demand, such amount with interest thereonfor the period from the date such payment is required to the date on which suchpayment is immediately available to the Swing Line Lender at a rate per annumequal to the applicable Overnight Rate from time to time in effect, plus anyadministrative, processing or similar fees customarily charged by the SwingLine Lender in connection with the foregoing. If such Lender pays such amount(with interest and fees as aforesaid), the amount so paid shall constitute suchLender’s Committed Loan included in the relevant Committed Borrowing or fundedparticipation in the relevant Swing Line Loan, as the case may be. Acertificate of the Swing Line Lender submitted to any Lender (through theAdministrative Agent) with respect to any amounts owing under this clause (iii)shall be conclusive absent manifest error.

 

(iv)          Each Revolving Credit Lender’s obligation tomake Committed Loans or to purchase and fund risk participations in Swing LineLoans pursuant to this Section 2.04(c) shall be absolute andunconditional and shall not be affected by any circumstance, including (A) anysetoff, counterclaim, recoupment, defense or other right which such Lender mayhave against the Swing Line Lender, the Borrower or any other Person for anyreason whatsoever, (B) the occurrence or continuance of a Default, or (C) anyother occurrence, event or condition, whether or not similar to any of theforegoing; provided, however, that each Revolving Credit Lender’sobligation to make Committed Loans pursuant to this Section 2.04(c) issubject to the conditions set forth in Section 4.02. No such funding ofrisk participations shall relieve or otherwise impair the obligation of theBorrower to repay Swing Line Loans, together with interest as provided herein.

 

(d)           Repayment of Participations.

 

(i)            At any time after any Revolving Credit Lenderhas purchased and funded a risk participation in a Swing Line Loan, if theSwing Line Lender receives any payment on account of such Swing Line Loan, theSwing Line Lender will distribute to such Revolving Credit Lender itsApplicable Revolving Credit Percentage thereof in the same funds as thosereceived by the Swing Line Lender.

 

(ii)           If any payment received by the Swing LineLender in respect of principal or interest on any Swing Line Loan is requiredto be returned by the Swing Line Lender under any of the circumstancesdescribed in Section 11.05 (including pursuant to any settlement enteredinto by the Swing Line Lender in its discretion), each Revolving Credit Lendershall pay to the Swing Line Lender its Applicable Revolving Credit Percentagethereof on demand of the Administrative Agent, plus interest thereon from thedate of such demand to the date such amount is returned, at a rate per annumequal to the applicable Overnight Rate. The Administrative Agent will make suchdemand upon the request of the Swing Line Lender. The obligations of theLenders under this clause shall survive the payment in full of the Obligationsand the termination of this Agreement.

 

(e)           Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsiblefor invoicing the Borrower for interest on the Swing Line Loans. Until eachRevolving Credit Lender funds its Base Rate Loan or risk participation pursuantto this Section 2.04 to refinance such Revolving Credit Lender’sApplicable Revolving Credit Percentage of any Swing Line Loan, interest inrespect of such Applicable Revolving Credit Percentage shall be solely for theaccount of the Swing Line Lender.

 

(f)            Payments Directly to Swing Line Lender. The Borrower shall make all payments ofprincipal and interest in respect of the Swing Line Loans directly to the SwingLine Lender.

 

37

----

 

**2.05.****      ****Prepayments**.

 

(a)           The Borrower may, upon notice to the Administrative Agent, at any timeor from time to time voluntarily prepay Loans in whole or in part withoutpremium or penalty; provided that (i) such notice must be received bythe Administrative Agent not later than 11:00 a.m. (A) three Business Daysprior to any date of prepayment of Eurodollar Rate Loans and (B) on the date ofprepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loansshall be in a principal amount of $1,000,000 or a whole multiple of $500,000 inexcess thereof; and (iii) any prepayment of Base Rate Loans shall be in aprincipal amount of $500,000 or a whole multiple of $100,000 in excess thereof,or, in each case, if less, the entire principal amount thereof thenoutstanding. Each such notice shall specify the date and amount of suchprepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loansare to be prepaid, the Interest Period(s) of such Loans. The AdministrativeAgent will promptly notify each Lender of its receipt of each such notice, andof the amount of such Lender’s ratable portion of such prepayment (based onsuch Lender’s Applicable Percentage of such prepayment in respect of therelevant Facility). If such notice is given by the Borrower, the Borrower shallmake such prepayment and the payment amount specified in such notice shall bedue and payable on the date specified therein. Any prepayment of a EurodollarRate Loan shall be accompanied by all accrued interest on the amount prepaid,together with any additional amounts required pursuant to Section 3.05.Each such prepayment shall be applied to the Loans of the Lenders in accordancewith their respective Applicable Percentages in respect of each of the relevantFacilities.

 

(b)           The Borrower may, upon notice to the Swing Line Lender (with a copy tothe Administrative Agent), at any time or from time to time, voluntarily prepaySwing Line Loans in whole or in part without premium or penalty; providedthat (i) such notice must be received by the Swing Line Lender and theAdministrative Agent not later than 1:00 p.m. on the date of the prepayment,and (ii) any such prepayment shall be in a minimum principal amount of$100,000. Each such notice shall specify the date and amount of suchprepayment. If such notice is given by the Borrower, the Borrower shall makesuch prepayment and the payment amount specified in such notice shall be dueand payable on the date specified therein.

 

(c)           If for any reason the Total Revolving Credit Outstandings at any timeexceed the Aggregate Commitments then in effect, the Borrower shall immediatelyprepay Loans and/or Cash Collateralize the L/C Obligations in an aggregateamount equal to such excess; provided, however, that the Borrowershall not be required to Cash Collateralize the L/C Obligations pursuant tothis Section 2.05(c) unless after the prepayment in full of the Loansthe Total Revolving Credit Outstandings exceed the Aggregate Commitments thenin effect.

 

**2.06.****      ****Termination or Reduction ofCommitments.**The Borrowermay, upon notice to the Administrative Agent, terminate the AggregateCommitments, or from time to time permanently reduce the Aggregate Commitments;provided that (i) any such notice shall be received by the Administrative Agentnot later than 11:00 a.m. three Business Days prior to the date of terminationor reduction, (ii) any such partial reduction shall be in an aggregate amountof $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) theBorrower shall not terminate or reduce the Aggregate Commitments if, aftergiving effect thereto and to any concurrent prepayments hereunder, the TotalRevolving Credit Outstandings would exceed the Aggregate Commitments, and (iv)if, after giving effect to any reduction of the Aggregate Commitments, theLetter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of theAggregate Commitments, such Sublimit shall be automatically reduced by theamount of such excess. The Administrative Agent will promptly notify theLenders of any such notice of termination or reduction of the AggregateCommitments. Any reduction of the Aggregate Commitments shall be applied to theCommitment of each Lender according to its Applicable Percentage. All fees 

 

38

----

 

accrueduntil the effective date of any termination of the Aggregate Commitments shallbe paid on the effective date of such termination.

 

**2.07.****      ****Repayment of Loans**.

 

(a)           The Borrower shall repay to the Lenders on the Maturity Date theaggregate principal amount of all Loans outstanding on such date.

 

(b)           The Borrower shall repay each Swing Line Loan on the earlier to occurof (i) the date ten Business Days after such Loan is made and (ii) the MaturityDate.

 

(c)           Currency Matters.

 

(i)            Dollars are the currency of account andpayment for each and every sum at any time due from the Loan Parties hereunder.No payment to the Administrative Agent, any Lender or the L/C Issuer (whetherunder any judgment or court order or otherwise) shall discharge the obligationor liability in respect of which it was made unless and until theAdministrative Agent or such Lender shall have received payment in full of theDollar Equivalent of the amount of such obligation or liability, and to theextent that the amount of any such payment shall, on actual conversion intoDollars, fall short of such obligation or liability actual or contingentexpressed in Dollars, the Borrower shall indemnify and hold harmless theAdministrative Agent, the L/C Issuer or such Lender, as the case may be, withrespect to the amount of the shortfall.

 

(ii)           If, on any Revaluation Date, the DollarEquivalent of the aggregate outstanding amount of all Loans and the L/CObligations exceeds the Aggregate Commitments, then the Borrower shall repay orprepay the Loans in accordance with this Agreement in an aggregate principalamount such that, after giving effect thereto, the aggregate outstanding amount(expressed in Dollars) of all Loans plus the L/C Obligations no longerexceeds the Aggregate Commitments.

 

(iii)          If on any Revaluation Date, the DollarEquivalent of the Foreign LC Exposure exceeds $2,000,000, then the Borrowershall immediately upon demand provide cash collateral to the AdministrativeAgent in the amount of such excess.

 

**2.08.****      ****Interest**.

 

(a)           Subject to the provisions of subsection (b) below, (i) each EurodollarRate Loan shall bear interest on the outstanding principal amount thereof foreach Interest Period at a rate per annum equal to the Eurodollar Rate for suchInterest Period plus the Applicable Rate; (ii) each Base Rate Loan shallbear interest on the outstanding principal amount thereof from the applicableborrowing date at a rate per annum equal to the Base Rate plus theApplicable Rate; and (iii) each Swing Line Loan shall bear interest on theoutstanding principal amount thereof from the applicable borrowing date at arate per annum equal to the Base Rate plus the Applicable Rate.

 

(b)           (i)            If any amount of principal of any Loan is notpaid when due (without regard to any applicable grace periods), whether atstated maturity, by acceleration or otherwise, such amount shall thereafterbear interest at a fluctuating interest rate per annum at all times equal tothe Default Rate to the fullest extent permitted by applicable Laws.

 

(ii)           If any amount (other than principal of anyLoan) payable by the Borrower under any Loan Document is not paid when due(without regard to any applicable grace periods), 

 

39

----

 

whether at stated maturity, by acceleration or otherwise, then upon therequest of the Required Lenders, such amount shall thereafter bear interest ata fluctuating interest rate per annum at all times equal to the Default Rate tothe fullest extent permitted by applicable Laws.

 

(iii)          Accrued and unpaid interest on past dueamounts (including interest on past due interest) shall be due and payable upondemand.

 

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

 

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

 

**2.09.****      ****Fees**. In addition to certain fees described insubsections (i) and (j) of Section 2.03:

 

(a)           Commitment Fee. The Borrower shall pay to theAdministrative Agent for the account of each Revolving Credit Lender inaccordance with its Applicable Revolving Credit Percentage, a commitment feeequal to the Applicable Rate times the actual daily amount by which theAggregate Commitments exceed the sum of (i) the Outstanding Amount of CommittedLoans and (ii) the Outstanding Amount of L/C Obligations. The commitment feeshall accrue at all times during the Availability Period, including at any timeduring which one or more of the conditions in Article IV is not met, andshall be due and payable quarterly in arrears on the last Business Day of eachMarch, June, September and December, commencing with the first such date tooccur after the Closing Date, and on the last day of the Availability Period.The commitment fee shall be calculated quarterly in arrears, and if there isany change in the Applicable Rate during any quarter, the actual daily amountshall be computed and multiplied by the Applicable Rate separately for eachperiod during such quarter that such Applicable Rate was in effect.

 

(b)           Other Fees. (i) The Borrower shall pay to the Arranger and the AdministrativeAgent for their own respective accounts fees in the amounts and at the timesspecified in the Fee Letter. Such fees shall be fully earned when paid andshall not be refundable for any reason whatsoever.

 

(ii)           The Borrower shall pay to the Lenders suchfees as shall have been separately agreed upon in writing in the amounts and atthe times so specified. Such fees shall be fully earned when paid and shall notbe refundable for any reason whatsoever.

 

(c)           For the purposes of the Interest Act (Canada), whenever a fee ratehereunder is calculated on the basis of a year (the “deemed year”) thatcontains fewer days than the actual number of days in the calendar year ofcalculation, such fee rate shall be expressed as a yearly rate by multiplyingsuch fee rate by the actual number of days in the calendar year of calculationand dividing it by the number of days in the deemed year.

 

**2.10.****      ****Computation of Interest andFees**. All computations ofinterest for Base Rate Loans when the Base Rate is determined by Bank ofAmerica’s “prime rate” shall be made on the basis of a year of 365 or 366 days,as the case may be, and actual days elapsed. All other computations of fees andinterest shall be made on the basis of a 360-day year and actual days elapsed(which results in more fees or interest, as applicable, being paid than ifcomputed on the basis of a 365-day year). Interest shall

 

40

----

 

accrueon each Loan for the day on which the Loan is made, and shall not accrue on aLoan, or any portion thereof, for the day on which the Loan or such portion ispaid, provided that any Loan that is repaid on the same day on which itis made shall, subject to Section 2.12(a), bear interest for one day.Each determination by the Administrative Agent of an interest rate or feehereunder shall be conclusive and binding for all purposes, absent manifesterror.

 

**2.11.****      ****Evidence of Debt**.

 

(a)           The Credit Extensions made by each Lender shall be evidenced by one ormore accounts or records maintained by such Lender and by the AdministrativeAgent in the ordinary course of business. The accounts or records maintained bythe Administrative Agent and each Lender shall be conclusive absent manifesterror of the amount of the Credit Extensions made by the Lenders to theBorrower and the interest and payments thereon. Any failure to so record or anyerror in doing so shall not, however, limit or otherwise affect the obligationof the Borrower hereunder to pay any amount owing with respect to theObligations. In the event of any conflict between the accounts and recordsmaintained by any Lender and the accounts and records of the AdministrativeAgent in respect of such matters, the accounts and records of theAdministrative Agent shall control in the absence of manifest error. Upon therequest of any Lender made through the Administrative Agent, the Borrower shallexecute and deliver to such Lender (through the Administrative Agent) a Note,which shall evidence such Lender’s Loans in addition to such accounts orrecords. Each Lender may attach schedules to its Note and endorse thereon thedate, Type (if applicable), amount and maturity of its Loans and payments withrespect thereto.

 

(b)           In addition to the accounts and records referred to in subsection (a),each Lender and the Administrative Agent shall maintain in accordance with itsusual practice accounts or records evidencing the purchases and sales by suchLender of participations in Letters of Credit and Swing Line Loans. In theevent of any conflict between the accounts and records maintained by theAdministrative Agent and the accounts and records of any Lender in respect ofsuch matters, the accounts and records of the Administrative Agent shallcontrol in the absence of manifest error.

 

**2.12.****      ****Payments Generally;Administrative Agent’s Clawback**.

 

(a)           General. All payments to be made by the Borrower shall be made withoutcondition or deduction for any counterclaim, defense, recoupment or setoff.Except as otherwise expressly provided herein, all payments by the Borrowerhereunder shall be made to the Administrative Agent, for the account of therespective Lenders to which such payment is owed, at the Administrative Agent’sOffice in Dollars and in Same Day Funds not later than 2:30 p.m. on the datespecified herein. The Administrative Agent will promptly distribute to eachLender its Applicable Percentage in respect of the relevant Facility (or otherapplicable share as provided herein) of such payment in like funds as receivedby wire transfer to such Lender’s Lending Office. All payments received by theAdministrative Agent after 2:30 p.m. shall be deemed received on the nextsucceeding Business Day and any applicable interest or fee shall continue toaccrue. If any payment to be made by the Borrower shall come due on a day otherthan a Business Day, payment shall be made on the next following Business Day,and such extension of time shall be reflected in computing interest or fees, asthe case may be.

 

(b)           (i)  Funding by Lenders;Presumption by Administrative Agent. Unless the Administrative Agent shallhave received notice from a Lender prior to the proposed date of any Borrowingof Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans,prior to 12:00 noon on the date of such Borrowing) that such Lender will notmake available to the Administrative Agent such Lender’s share of suchBorrowing, the Administrative Agent may assume that such Lender has made suchshare available on such date in accordance with Section 2.02 (or, in thecase of a 

 

41

----

 

Borrowingof Base Rate Loans, that such Lender has made such share available inaccordance with and at the time required by Section 2.02) and may, inreliance upon such assumption, make available to the Borrower a correspondingamount. In such event, if a Lender has not in fact made its share of theapplicable Borrowing available to the Administrative Agent, then the applicableLender and the Borrower severally agree to pay to the Administrative Agentforthwith on demand such corresponding amount in Same Day Funds with interestthereon, for each day from and including the date such amount is made availableto the Borrower to but excluding the date of payment to the AdministrativeAgent, at (A) in the case of a payment to be made by such Lender, the OvernightRate, plus any administrative, processing or similar fees customarily chargedby the Administrative Agent in connection with the foregoing, and (B) in thecase of a payment to be made by the Borrower, the interest rate applicable toBase Rate Loans. If the Borrower and such Lender shall pay such interest to theAdministrative Agent for the same or an overlapping period, the AdministrativeAgent shall promptly remit to the Borrower the amount of such interest paid bythe Borrower for such period. If such Lender pays its share of the applicableBorrowing to the Administrative Agent, then the amount so paid shall constitutesuch Lender’s Loan included in such Borrowing. Any payment by the Borrowershall be without prejudice to any claim the Borrower may have against a Lenderthat shall have failed to make such payment to the Administrative Agent.

 

(ii)           Payments by Borrower; Presumptions byAdministrative Agent. Unlessthe Administrative Agent shall have received notice from the Borrower prior tothe date on which any payment is due to the Administrative Agent for theaccount of the Lenders or the L/C Issuer hereunder that the Borrower will notmake such payment, the Administrative Agent may assume that the Borrower hasmade such payment on such date in accordance herewith and may, in reliance uponsuch assumption, distribute to the Appropriate Lenders or the L/C Issuer, asthe case may be, the amount due. In such event, if the Borrower has not in factmade such payment, then each of the Appropriate Lenders or the L/C Issuer, asthe case may be, severally agrees to repay to the Administrative Agentforthwith on demand the amount so distributed to such Lender or the L/C Issuer,in Same Day Funds with interest thereon, for each day from and including thedate such amount is distributed to it to but excluding the date of payment tothe Administrative Agent, at the Overnight Rate.

 

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

 

(c)           Failure to Satisfy Conditions Precedent. If any Lender makes available to theAdministrative Agent funds for any Loan to be made by such Lender as providedin the foregoing provisions of this Article II, and such funds are notmade available to the Borrower by the Administrative Agent because theconditions to the applicable Credit Extension set forth in Article IVare not satisfied or waived in accordance with the terms hereof, theAdministrative Agent shall return such funds (in like funds as received fromsuch Lender) to such Lender, without interest.

 

(d)           Obligations of Lenders Several. The obligations of the Lenders hereunder tomake Loans, to fund participations in Letters of Credit and Swing Line Loansand to make payments pursuant to Section 11.04(c) are several and notjoint. The failure of any Lender to make any Loan, to fund any such participationor to make any payment under Section 11.04(c) on any date requiredhereunder shall not relieve any other Lender of its corresponding obligation todo so on such date, and no Lender shall be responsible for the failure of anyother Lender to so make its Loan, to purchase its participation or to make itspayment under Section 11.04(c).

 

42

----

 

(e)           Funding Source. Nothing herein shall be deemed to obligateany Lender to obtain the funds for any Loan in any particular place or manneror to constitute a representation by any Lender that it has obtained or willobtain the funds for any Loan in any particular place or manner.

 

(f)            Insufficient Funds. If at any time insufficient funds arereceived by and available to the Administrative Agent to pay fully all amountsof principal, L/C Borrowings, interest and fees then due hereunder, such fundsshall be applied (i) first, toward payment of interest and fees then duehereunder, ratably among the parties entitled thereto in accordance with theamounts of interest and fees then due to such parties, and (ii) second,toward payment of principal and L/C Borrowings then due hereunder, ratablyamong the parties entitled thereto in accordance with the amounts of principaland L/C Borrowings then due to such parties.

 

**2.13.****      ****Sharing of Payments byLenders.**If any Lendershall, by exercising any right of setoff or counterclaim or otherwise, obtainpayment in respect of (a) Obligations in respect of any the Facilities due andpayable to such Lender hereunder and under the other Loan Documents at suchtime in excess of its ratable share (according to the proportion of (i) theamount of such Obligations due and payable to such Lender at such time to (ii)the aggregate amount of the Obligations in respect of the Facilities due andpayable to all Lenders hereunder and under the other Loan Documents at suchtime) of payments on account of the Obligations in respect of the Facilitiesdue and payable to all Lenders hereunder and under the other Loan Documents atsuch time obtained by all the Lenders at such time or (b) Obligations inrespect of any of the Facilities owing (but not due and payable) to such Lenderhereunder and under the other Loan Documents at such time in excess of itsratable share (according to the proportion of (i) the amount of suchObligations owing (but not due and payable) to such Lender at such time to (ii)the aggregate amount of the Obligations in respect of the Facilities owing (butnot due and payable) to all Lenders hereunder and under the other Loan Partiesat such time) of payment on account of the Obligations in respect of theFacilities owing (but not due and payable) to all Lenders hereunder and underthe other Loan Documents at such time obtained by all of the Lenders at suchtime then the Lender receiving such greater proportion shall (a) notify theAdministrative Agent of such fact, and (b) purchase (for cash at face value)participations in the Loans and subparticipations in L/C Obligations and SwingLine Loans of the other Lenders, or make such other adjustments as shall beequitable, so that the benefit of all such payments shall be shared by theLenders ratably in accordance with the aggregate amount of Obligations inrespect of the Facilities then due and payable to the Lenders or owing (but notdue and payable) to the Lenders, as the case may be, provided that:

 

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

 

(ii)           the provisions of this Section shall not beconstrued to apply to (x) any payment made by the Borrower pursuant to and inaccordance with the express terms of this Agreement or (y) any payment obtainedby a Lender as consideration for the assignment of or sale of a participationin any of its Loans or subparticipations in L/C Obligations or Swing Line Loansto any assignee or participant, other than to the Borrower or any Subsidiarythereof (as to which the provisions of this Section shall apply).

 

Each of Holdings and the Borrower consent to the foregoing and agrees,to the extent it may effectively do so under applicable law, that any Lenderacquiring a participation pursuant to the foregoing arrangements may exerciseagainst such Loan Party rights of setoff and counterclaim with respect to such 

 

43

----

 

participationas fully as if such Lender were a direct creditor of such Loan Party in theamount of such participation.

 

**2.14.****      ****Increase in Commitments**.

 

(a)           Request for Increase or a Term Loan. Provided there exists no Default, uponwritten notice to the Administrative Agent and the Lenders, the Borrower mayfrom time to time, request an increase in the Aggregate Commitments or a TermLoan; provided that (i) the aggregate amount of all such increasestogether with the principal amount of such Term Loans shall not exceed$125,000,000, (ii) any such request for an increase or a Term Loan shall be ina minimum amount of $25,000,000, (iii) the Borrower may make a maximum of five(5) such requests and (iv) in the case of a Term Loan, such Term Loan (A) shallbe pari passu with the Committed Loans, (B) shall mature on or after theMaturity Date, (C) shall be subject to customary mandatory prepaymentprovisions and (D) shall otherwise be on terms and conditions satisfactory tothe Administrative Agent (such consent, in the event that such Term Loan is onthen market terms, not to be unreasonably withheld). In the event of a requestof a Term Loan, the parties hereto acknowledge and agree that this Agreementshall be amended to incorporate the Term Loan and related provisions and suchamendment shall be subject to the prior written consent of the AdministrativeAgent and the Required Lenders (such consent not to be unreasonably withheld ordelayed so long as such Term Loan satisfies the provisions of the precedingsentence). At the time of sending such notice, the Borrower (in consultationwith the Administrative Agent) shall specify the time period within which eachLender is requested to respond (which shall in no event be less than tenBusiness Days from the date of delivery of such notice to the Lenders).

 

(b)           Lender Elections to Increase or Participatein a Term Loan. Each Lendershall notify the Administrative Agent in writing within such time periodwhether or not it agrees to increase its Commitment or participate in the TermLoan and, if so, at what percentage of such requested increase or Term Loan.Any Lender not responding within such time period shall be deemed to havedeclined to increase its Commitment or participate in the Term Loan.

 

(c)           Notification by Administrative Agent;Additional Lenders. TheAdministrative Agent shall notify the Borrower and each Lender of the Lenders’responses to each request made hereunder. In the event that the Lenders do notagree to increase their Commitments or participate in the Term Loan in anamount equal to the amount requested by the Borrower, to achieve the fullamount of a requested increase or Term Loan and subject to the approval of theAdministrative Agent and the L/C Issuer (which approvals shall not beunreasonably withheld), the Borrower may also invite additional EligibleAssignees to become Lenders pursuant to a joinder agreement in form andsubstance satisfactory to the Administrative Agent and its counsel.

 

(d)           Effective Date and Allocations. If the Aggregate Commitments are increasedin accordance with this Section or a Term Loan is advanced, the AdministrativeAgent and the Borrower shall determine the effective date (the “EffectiveDate”) and the final allocation of such increase or Term Loan. TheAdministrative Agent shall promptly notify the Borrower and the Lenders of thefinal allocation of such increase or Term Loan and the Effective Date.

 

(e)           Conditions to Effectiveness of Increase orTerm Loan. As a conditionprecedent to such increase or Term Loan, (i) the Borrower shall deliver to theAdministrative Agent a certificate of each Loan Party dated as of the EffectiveDate (in sufficient copies for each Lender) signed by a Responsible Officer ofsuch Loan Party (A) certifying and attaching the resolutions adopted by suchLoan Party approving or consenting to such increase or Term Loan, and (B) inthe case of Holdings and the Borrower, certifying that, before and after givingeffect to such increase or Term Loan, (1) the 

 

44

----

 

representationsand warranties contained in Article V and the other Loan Documents aretrue and correct on and as of the Effective Date, except to the extent thatsuch representations and warranties specifically refer to an earlier date, inwhich case they are true and correct as of such earlier date, and except thatfor purposes of this Section 2.14, the representations and warrantiescontained in subsections (a) and (b) of Section 5.05 shall be deemed torefer to the most recent statements furnished pursuant to clauses (a) and (b),respectively, of Section 6.01, and (2) no Default exists, (ii) counselfor Holdings and the Borrower shall have provided to the Administrative Agent asupplemental opinion in form and substance reasonably satisfactory to theAdministrative Agent and (iii) Holdings, the Borrower, the Lenders and any suchadditional Eligible Assignees shall otherwise have executed and delivered suchother instruments and documents as the Administrative Agent shall havereasonably requested in connection with such increase or Term Loan. TheBorrower shall prepay any Committed Loans outstanding on the Effective Date(and pay any additional amounts required pursuant to Section 3.05) tothe extent necessary to keep the outstanding Committed Loans ratable with anyrevised Applicable Revolving Credit Percentages arising from any nonratableincrease in the Commitments under this Section.

 

(f)            Conflicting Provisions. This Section shall supersede any provisionsin Section 2.13 or 11.01 to the contrary.

 

**2.15.****      ****The Term Loan Borrowings.**If the Borrower requests a Term Loan pursuantto Section 2.14, subject to the terms and conditions set forth herein,each Term Loan Lender severally agrees to make a Term Loan on the applicableEffective Date not to exceed such Term Loan Lender’s Applicable Percentage ofthe Term Loan requested by the Borrower. Amounts borrowed under this Section2.15 and repaid or prepaid may not be reborrowed. Term Loans may be BaseRate Loans or Eurodollar Rate Loans, as provided herein.

 

**ARTICLE III.****TAXES, YIELD PROTECTION AND ILLEGALITY**

 

**3.01.****      ****Taxes.**

 

(a)           Payments Free of Taxes. Any and all payments by or on account ofany obligation of the Borrower or Holdings hereunder or under any other LoanDocument shall be made free and clear of and without reduction or withholdingfor any Indemnified Taxes or Other Taxes, provided that if the Borrowershall be required by applicable law to deduct any Indemnified Taxes (includingany Other Taxes) from such payments, then (i) the sum payable shall beincreased as necessary so that after making all required deductions (includingdeductions applicable to additional sums payable under this Section) theAdministrative Agent, any Lender or the L/C Issuer, as the case may be,receives an amount equal to the sum it would have received had no suchdeductions been made, (ii) the Borrower or Holdings, as the case may be, shallmake such deductions and (iii) the Borrower or Holdings, as the case may be,shall timely pay the full amount deducted to the relevant GovernmentalAuthority in accordance with applicable law.

 

(b)           Payment of Other Taxes by the Borrower andHoldings. Without limitingthe provisions of subsection (a) above, the Borrower or Holdings, asapplicable, shall timely pay any Other Taxes to the relevant GovernmentalAuthority in accordance with applicable law.

 

(c)           Indemnification by the Borrower and Holdings. The Borrower and Holdings shall, jointlyand severally, indemnify the Administrative Agent, each Lender and the L/CIssuer, within 10 days after demand therefor, for the full amount of anyIndemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxesimposed or asserted on or attributable to amounts payable under this 

 

45

----

 

Section)paid by the Administrative Agent, such Lender or the L/C Issuer, as the casemay be, and any penalties, interest and reasonable expenses arising therefromor with respect thereto, whether or not such Indemnified Taxes or Other Taxeswere correctly or legally imposed or asserted by the relevant GovernmentalAuthority. A certificate as to the amount of such payment or liabilitydelivered to the Borrower by a Lender or the L/C Issuer (with a copy to theAdministrative Agent), or by the Administrative Agent on its own behalf or onbehalf of a Lender or the L/C Issuer, shall be conclusive absent manifesterror.

 

(d)           Evidence of Payments. As soon as practicable after any payment ofIndemnified Taxes or Other Taxes by the Borrower or Holdings, as the case may be,to a Governmental Authority, the Borrower or Holdings, as the case may be,shall deliver to the Administrative Agent the original or a certified copy of areceipt issued by such Governmental Authority evidencing such payment, a copyof the return reporting such payment or other evidence of such paymentreasonably satisfactory to the Administrative Agent.

 

(e)           Status of Lenders. Any Foreign Lender that is entitled to anexemption from or reduction of withholding tax under the law of thejurisdiction in which the Borrower or Holdings, as the case may be, is residentfor tax purposes, or any treaty to which such jurisdiction is a party, withrespect to payments hereunder or under any other Loan Document shall deliver tothe Borrower and Holdings (with a copy to the Administrative Agent), at thetime or times prescribed by applicable law or reasonably requested by theBorrower, Holdings or the Administrative Agent, such properly completed andexecuted documentation prescribed by applicable law as will permit suchpayments to be made without withholding or at a reduced rate of withholding. Inaddition, any Lender, if requested by the Borrower, Holdings, or theAdministrative Agent, shall deliver such other documentation prescribed byapplicable law or reasonably requested by the Borrower, Holdings or theAdministrative Agent as will enable the Borrower, Holdings or theAdministrative Agent to determine whether or not such Lender is subject tobackup withholding or information reporting requirements. Each such ForeignLender shall also deliver to the Borrower (with a copy to the AdministrativeAgent) such further documentation requested by the Borrower on or before thedate that any documentation previously delivered to the Borrower hereundershall expire or become obsolete and after the occurrence of any event requiringa change in such previously delivered documentation.

 

Without limiting the generality of the foregoing, inthe event that the Borrower or Holdings, as the case may be, is resident fortax purposes in the United States, any Foreign Lender shall deliver to theBorrower, Holdings and the Administrative Agent (in such number of copies asshall be requested by the recipient) on or prior to the date on which suchForeign Lender becomes a Lender under this Agreement (and from time to timethereafter upon the request of the Borrower, Holdings or the AdministrativeAgent, but only if such Foreign Lender is legally entitled to do so), whicheverof the following is applicable:

 

(i)            duly completed copies of Internal RevenueService Form W-8BEN certifying that such Foreign Lender is not a United StatesPerson and claiming eligibility for benefits of an income tax treaty to whichthe United States is a party,

 

(ii)           duly completed copies of Internal RevenueService Form W-8ECI certifying that such Foreign Lender is not a United StatesPerson and claiming that payments hereunder are income effectively connectedwith the conduct of a trade or business in the United States,

 

(iii)          in the case of a Foreign Lender claiming thebenefits of the exemption for portfolio interest under section 881(c) of theCode, (x) a certificate to the effect that such Foreign Lender is not (A) a“bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 

 

46

----

 

percent shareholder” of the Borrower or Holdings within the meaning ofsection 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation”described in section 881(c)(3)(C) of the Code and (y) duly completed copies ofInternal Revenue Service Form W-8BEN certifying that such Foreign Lender is nota United States Person, or

 

(iv)          any other form prescribed by applicable lawas a basis for claiming exemption from or a reduction in United States Federalwithholding tax, backup withholding or information reporting requirements, ineach case, duly completed together with such supplementary documentation as maybe prescribed by applicable law to permit the Borrower to determine thewithholding or deduction required to be made.

 

(f)            Treatment of Certain Refunds. If the Administrative Agent, any Lender orthe L/C Issuer determines, in its sole discretion, that it has received arefund of any Taxes or Other Taxes as to which it has been indemnified by theBorrower or Holdings, as the case may be, or with respect to which the Borroweror Holdings, as the case may be, has paid additional amounts pursuant to thisSection, it shall pay to the Borrower or Holdings, as the case may be, anamount equal to such refund (but only to the extent of indemnity payments made,or additional amounts paid, by the Borrower or Holdings under this Section withrespect to the Taxes or Other Taxes giving rise to such refund), net of allout-of-pocket expenses of the Administrative Agent, such Lender or the L/CIssuer, as the case may be, and without interest (other than any interest paidby the relevant Governmental Authority with respect to such refund), providedthat the Borrower or Holdings, as the case may be, upon the request of theAdministrative Agent, such Lender or the L/C Issuer, agrees to repay the amountpaid over to the Borrower (plus any penalties, interest or other chargesimposed by the relevant Governmental Authority) to the Administrative Agent,such Lender or the L/C Issuer in the event the Administrative Agent, suchLender or the L/C Issuer is required to repay such refund to such GovernmentalAuthority. This subsection shall not be construed to require the AdministrativeAgent, any Lender or the L/C Issuer to make available its tax returns (or anyother information relating to its taxes that it deems confidential) to theBorrower, Holdings or any other Person.

 

**3.02.****      ****Illegality**. If any Lender determines that any Law hasmade it unlawful, or that any Governmental Authority has asserted that it isunlawful, for any Lender or its applicable Lending Office to make, maintain orfund Eurodollar Rate Loans, or to determine or charge interest rates based uponthe Eurodollar Rate, then, on notice thereof by such Lender to the Borrowerthrough the Administrative Agent, any obligation of such Lender to make orcontinue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar RateLoans shall be suspended until such Lender notifies the Administrative Agentand the Borrower that the circumstances giving rise to such determination nolonger exist. Upon receipt of such notice, the Borrower shall, upon demand fromsuch Lender (with a copy to the Administrative Agent), prepay or, ifapplicable, convert all Eurodollar Rate Loans of such Lender to Base RateLoans, either on the last day of the Interest Period therefor, if such Lendermay lawfully continue to maintain such Eurodollar Rate Loans to such day, orimmediately, if such Lender may not lawfully continue to maintain suchEurodollar Rate Loans. Upon any such prepayment or conversion, the Borrowershall also pay accrued interest on the amount so prepaid or converted.

 

**3.03.****      ****Inability to Determine Rates**. If the Required Lenders determine that forany reason in connection with any request for a Eurodollar Rate Loan or aconversion to or continuation thereof that (a) adequate and reasonablemeans do not exist for determining the Eurodollar Rate for any requestedInterest Period with respect to a proposed Eurodollar Rate Loan, or(b) the Eurodollar Rate for any requested Interest Period with respect toa proposed Eurodollar Rate Loan does not adequately and fairly reflect the costto such Lenders of funding such Loan, the Administrative Agent will promptly sonotify the Borrower and each Lender. Thereafter, the obligation of the Lendersto make or maintain Eurodollar 

 

47

----

 

RateLoans shall be suspended until the Administrative Agent (upon the instructionof the Required Lenders) revokes such notice. Upon receipt of such notice, theBorrower may revoke any pending request for a Borrowing of, conversion to orcontinuation of Eurodollar Rate Loans or, failing that, will be deemed to haveconverted such request into a request for a Committed Borrowing of Base RateLoans in the amount specified therein.

 

**3.04.****      ****Increased Costs; Reserves onEurodollar Rate Loans.**

 

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

 

(i)            impose, modify or deem applicable anyreserve, special deposit, compulsory loan, insurance charge or similarrequirement against assets of, deposits with or for the account of, or creditextended or participated in by, any Lender (except any reserve requirementcontemplated by Section 3.04(e)) or the L/C Issuer;

 

(ii)           subject any Lender or the L/C Issuer to anytax of any kind whatsoever with respect to this Agreement, any Letter ofCredit, any participation in a Letter of Credit or any Eurodollar Rate Loanmade by it, or change the basis of taxation of payments to such Lender or theL/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxescovered by Section 3.01 and the imposition of, or any change in the rateof, any Excluded Tax payable by such Lender or the L/C Issuer); or

 

(iii)          impose on any Lender or the L/C Issuer or theLondon interbank market any other condition, cost or expense affecting thisAgreement or Eurodollar Rate Loans made by such Lender or any Letter of Creditor participation therein;

 

and the result of any of the foregoing shall be to increase the cost tosuch Lender of making or maintaining any Eurodollar Rate Loan (or ofmaintaining its obligation to make any such Loan), or to increase the cost tosuch Lender or the L/C Issuer of participating in, issuing or maintaining anyLetter of Credit (or of maintaining its obligation to participate in or toissue any Letter of Credit), or to reduce the amount of any sum received orreceivable by such Lender or the L/C Issuer hereunder (whether of principal,interest or any other amount) then, upon request of such Lender or the L/CIssuer, the Borrower will pay to such Lender or the L/C Issuer, as the case maybe, such additional amount or amounts as will compensate such Lender or the L/CIssuer, as the case may be, for such additional costs incurred or reductionsuffered.

 

(b)           Capital Requirements. If any Lender or the L/C Issuer determines,in its reasonable judgment, that any Change in Law affecting such Lender or theL/C Issuer or any Lending Office of such Lender or such Lender’s or the L/CIssuer’s holding company, if any, regarding capital requirements has or wouldhave the effect of reducing the rate of return on such Lender’s or the L/CIssuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holdingcompany, if any, as a consequence of this Agreement, the Commitments of suchLender or the Loans made by, or participations in Letters of Credit held by,such Lender, or the Letters of Credit issued by the L/C Issuer, to a levelbelow that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’sholding company could have achieved but for such Change in Law (taking intoconsideration such Lender’s or the L/C Issuer’s policies and the policies ofsuch Lender’s or the L/C Issuer’s holding company with respect to capitaladequacy), then from time to time the Borrower will pay to such Lender or theL/C Issuer, as the case may be, such additional amount or amounts as willcompensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’sholding company for any such reduction suffered.

 

48

----

 

(c)           Certificates for Reimbursement. A certificate of a Lender or the L/C Issuersetting forth the amount or amounts necessary to compensate such Lender or theL/C Issuer or its holding company, as the case may be, as specified insubsection (a) or (b) of this Section and delivered to the Borrower shall beconclusive absent manifest error. The Borrower shall pay such Lender or the L/CIssuer, as the case may be, the amount shown as due on any such certificatewithin 10 days after receipt thereof.

 

(d)           Delay in Requests. Failure or delay on the part of any Lenderor the L/C Issuer to demand compensation pursuant to the foregoing provisionsof this Section shall not constitute a waiver of such Lender’s or the L/CIssuer’s right to demand such compensation, provided that the Borrowershall not be required to compensate a Lender or the L/C Issuer pursuant to theforegoing provisions of this Section for any increased costs incurred orreductions suffered more than six months prior to the date that such Lender orthe L/C Issuer, as the case may be, notifies the Borrower of the Change in Lawgiving rise to such increased costs or reductions and of such Lender’s or theL/C Issuer’s intention to claim compensation therefor (except that, if theChange in Law giving rise to such increased costs or reductions is retroactive,then the six-month period referred to above shall be extended to include theperiod of retroactive effect thereof).

 

(e)           Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, aslong as such Lender shall be required to maintain reserves with respect toliabilities or assets consisting of or including Eurocurrency funds or deposits(currently known as “Eurocurrency liabilities”), additional interest on theunpaid principal amount of each Eurodollar Rate Loan equal to the actual costsof such reserves allocated to such Loan by such Lender (as determined by suchLender in good faith, which determination shall be conclusive), which shall bedue and payable on each date on which interest is payable on such Loan, providedthe Borrower shall have received at least 10 days’ prior notice (with a copy tothe Administrative Agent) of such additional interest from such Lender. If aLender fails to give notice 10 days prior to the relevant Interest PaymentDate, such additional interest shall be due and payable 10 days from receipt ofsuch notice.

 

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

 

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

 

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

 

(c)           any assignment of a Eurodollar Rate Loan on a day other than the lastday of the Interest Period therefor as a result of a request by the Borrowerpursuant to Section 11.13;

 

(d)           any failure by any Borrower to make payment of any drawing under anyLetter of Credit (or interest due thereon) denominated in an AlternativeCurrency on its scheduled due date or any payment thereof in a differentcurrency;

 

including any foreign exchange losses and any loss or expense arisingfrom the liquidation or reemployment of funds obtained by it to maintain suchLoan or from fees payable to terminate the deposits from which such funds wereobtained or from the performance of any foreign exchange contract. 

 

49

----

 

TheBorrower shall also pay any customary administrative fees charged by suchLender in connection with the foregoing.

 

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

 

**3.06.****      ****Mitigation Obligations;Replacement of Lenders.**

 

(a)           Designation of a Different Lending Office. If any Lender requests compensation under Section3.04, or the Borrower is required to pay any additional amount to anyLender or any Governmental Authority for the account of any Lender pursuant to Section3.01, or if any Lender gives a notice pursuant to Section 3.02, thensuch Lender shall use reasonable efforts to designate a different LendingOffice for funding or booking its Loans hereunder or to assign its rights andobligations hereunder to another of its offices, branches or affiliates, if, inthe judgment of such Lender, such designation or assignment (i) would eliminateor reduce amounts payable pursuant to Section 3.01 or 3.04, asthe case may be, in the future, or eliminate the need for the notice pursuantto Section 3.02, as applicable, and (ii) in each case, would not subjectsuch Lender to any unreimbursed cost or expense and would not otherwise bedisadvantageous to such Lender. The Borrower hereby agrees to pay allreasonable costs and expenses incurred by any Lender in connection with any suchdesignation or assignment.

 

(b)           Replacement of Lenders. If any Lender requests compensation under Section3.04, if the Borrower is required to pay any additional amount to anyLender or any Governmental Authority for the account of any Lender pursuant to Section3.01, or if the Lender determines it is unlawful to make, maintain or fundEurodollar Loans pursuant to Section 3.02, the Borrower may replace suchLender in accordance with Section 11.13.

 

**3.07.****      ****Survival**. All of the Borrower’s obligations under Sections3.01, 3.04 and 3.05 shall survive termination of theAggregate Commitments and repayment of all other Obligations hereunder.

 

**ARTICLE IV.****CONDITIONS PRECEDENT TO CREDIT EXTENSIONS**

 

**4.01.****      ****Conditions of Initial CreditExtension**. The obligation ofthe L/C Issuer and each Lender to make its initial Credit Extension hereunderis subject to satisfaction of the following conditions precedent:

 

(a)           The Administrative Agent’s receipt of the following, each of whichshall be originals or telecopies (followed promptly by originals) unlessotherwise specified, each properly executed by a Responsible Officer of thesigning Loan Party, each dated the Closing Date (or, in the case ofcertificates of governmental officials, a recent date before the Closing Date) andeach in form and substance satisfactory to the Administrative Agent and each ofthe Lenders:

 

(i)            executed counterparts of this Agreement andthe other Loan Documents, sufficient in number for distribution to theAdministrative Agent, each Lender and the Borrower;

 

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

 

50

----

 

(iii)          executed counterparts of each CollateralDocument, together with:

 

(A)          certificates representing the EquityInterests pledged thereunder accompanied by undated stock powers executed inblank and instruments evidencing any debt pledged thereunder indorsed in blank,

 

(B)           proper Financing Statements in formappropriate for filing under the Uniform Commercial Code of all jurisdictionsthat the Administrative Agent may deem necessary or desirable in order toperfect the Liens created under the Collateral Documents, covering theCollateral described in the Collateral Documents,

 

(C)           completed requests for information, dated onor before the date of the initial Credit Extension, listing all effectivefinancing statements filed in any jurisdiction that name any Loan Party asdebtor, together with copies of such other financing statements,

 

(D)          evidence of the completion of all otheractions, recordings and filings of or with respect to the Collateral Documentsthat the Administrative Agent may deem necessary or desirable in order toperfect the Liens created thereby,

 

(E)           evidence that all other action that theAdministrative Agent may deem necessary or desirable in order to perfect theLiens created under the Security Agreement has been taken (including receipt ofduly executed payoff letters, UCC-3 termination statements, bailees’ waiver andconsent agreements and a landlord waiver for the locations listed on Schedule4.01(a)(iii));

 

(iv)          such certificates of resolutions or otheraction, incumbency certificates and/or other certificates of ResponsibleOfficers of each Loan Party as the Administrative Agent may require evidencingthe identity, authority and capacity of each Responsible Officer thereofauthorized to act as a Responsible Officer in connection with this Agreementand the other Loan Documents to which such Loan Party is a party;

 

(v)           such documents and certifications as theAdministrative Agent may reasonably require to evidence that each Loan Party isduly organized or formed, and that each Loan Party is validly existing, in goodstanding and qualified to engage in business in each jurisdiction where its ownership,lease or operation of properties or the conduct of its business requires suchqualification, except to the extent that failure to do so could not reasonablybe expected to have a Material Adverse Effect;

 

(vi)          a favorable opinion of Ballard Spahr Andrews& Ingersoll, LLP, counsel to the Loan Parties, and each local counsellisted on Schedule 4.01(a)(vi), each addressed to the AdministrativeAgent and each Lender, as to the matters concerning the Loan Parties and theLoan Documents as the Required Lenders may reasonably request;

 

(vii)         a certificate of a Responsible Officer ofeach Loan Party either (A) attaching copies of all consents, licenses andapprovals required in connection with the execution, delivery and performanceby such Loan Party and the validity against such Loan Party of the LoanDocuments to which it is a party, and such consents, licenses and approvalsshall be in full force and effect, or (B) stating that no such consents,licenses or approvals are so required;

 

51

----

 

(viii)        a certificate signed by a Responsible Officerof the Borrower certifying (A) that the conditions specified in Sections4.02(a) and (b) have been satisfied, (B) that there has been noevent or circumstance since the date of the Audited Financial Statements thathas had or could be reasonably expected to have, either individually or in theaggregate, a Material Adverse Effect; and (C) that, after giving effect to thetransactions contemplated hereby, each Loan Party is Solvent;

 

(ix)           evidence that all insurance required to bemaintained pursuant to the Loan Documents has been obtained and is in effect,together with the certificates of insurance, naming the Administrative Agent,on behalf of the Lenders, as an additional insured or loss payee, as the casemay be, under all insurance policies maintained with respect to the assets andproperties of the Loan Parties that constitutes Collateral;

 

(x)            evidence that the Existing Credit Agreementhas been or concurrently with the Closing Date is being terminated and allLiens securing obligations under the Existing Credit Agreement have been orconcurrently with the Closing Date are being released

 

(xi)           Intercreditor Agreement with Arch InsuranceCompany, duly executed by the appropriate parties; and

 

(xii)          such other assurances, certificates,documents, consents or opinions as the Administrative Agent, the L/C Issuer,the Swing Line Lender or the Required Lenders reasonably may require.

 

(b)           Any fees required to be paid on or before the Closing Date shall have beenpaid.

 

(c)           Unless waived by the Administrative Agent, the Borrower shall have paidall fees, charges and disbursements of counsel to the Administrative Agent(directly to such counsel if requested by the Administrative Agent) to theextent invoiced prior to or on the Closing Date, plus such additional amountsof such fees, charges and disbursements as shall constitute its reasonableestimate of such fees, charges and disbursements incurred or to be incurred byit through the closing proceedings (provided that such estimate shall notthereafter preclude a final settling of accounts between the Borrower and theAdministrative Agent).

 

(d)           The Closing Date shall have occurred on or before July 31, 2006.

 

Without limiting the generality of the provisions of Section 9.04,for purposes of determining compliance with the conditions specified in this Section4.01, each Lender that has signed this Agreement shall be deemed to haveconsented to, approved or accepted or to be satisfied with, each document orother matter required thereunder to be consented to or approved by oracceptable or satisfactory to a Lender unless the Administrative Agent shallhave received notice from such Lender prior to the proposed Closing Datespecifying its objection thereto.

 

**4.02.****      ****Conditions to all CreditExtensions**. The obligationof each Lender to honor any Request for Credit Extension (other than a LoanNotice requesting only a conversion of Loans to the other Type, or acontinuation of Eurodollar Rate Loans) is subject to the following conditionsprecedent:

 

(a)           The representations and warranties of Holdings and the Borrowercontained in Article V or any other Loan Document, or which arecontained in any document furnished pursuant to the terms of this Agreement,shall be true and correct in all material respects (except for representationsand warranties that are already qualified as to materiality, which shallinstead be true and correct) on and as of the date of 

 

52

----

 

suchCredit Extension, except to the extent that such representations and warrantiesspecifically refer to an earlier date, in which case they shall be true andcorrect as of such earlier date, and except that for purposes of this Section4.02, the representations and warranties contained in subsections (a) and(b) of Section 5.05 shall be deemed to refer to the most recentstatements furnished pursuant to clauses (a) and (b), respectively, of Section6.01.

 

(b)           No Default shall exist, or would result from such proposed CreditExtension or from the application of the proceeds thereof.

 

(c)           The Administrative Agent and, if applicable, the L/C Issuer or theSwing Line Lender shall have received a Request for Credit Extension inaccordance with the requirements hereof.

 

(d)           In the case of a Credit Extension to be denominated in an AlternativeCurrency, there shall not have occurred any change in national or internationalfinancial, political or economic conditions or currency exchange rates orexchange controls which in the reasonable opinion of the L/C Issuer would makeit impracticable for such Credit Extension to be denominated in the relevantAlternative Currency.

 

Each Request for Credit Extension (other than a Loan Notice requestingonly a conversion of Loans to the other Type or a continuation of EurodollarRate Loans) submitted by the Borrower shall be deemed to be a representationand warranty that the conditions specified in Sections 4.02(a) and (b)have been satisfied on and as of the date of the applicable Credit Extension.

 

**ARTICLE V.****REPRESENTATIONS AND WARRANTIES**

 

Each of Holdings and the Borrower represents and warrants to theAdministrative Agent and the Lenders that:

 

**5.01.****      ****Existence, Qualification andPower**. Each Loan Party andeach Subsidiary thereof (a) is duly organized or formed, validly existing and,as applicable, in good standing under the Laws of the jurisdiction of itsincorporation or organization, (b) has all requisite power and authority andall requisite governmental licenses, authorizations, consents and approvals to(i) own or lease its assets and carry on its business and (ii) execute, deliverand perform its obligations under the Loan Documents to which it is a party,and (c) is duly qualified and is licensed and, as applicable, in good standingunder the Laws of each jurisdiction where its ownership, lease or operation ofproperties or the conduct of its business requires such qualification orlicense; except in each case referred to in clause (b)(i) or (c), to the extentthat failure to do so could not reasonably be expected to have a MaterialAdverse Effect.

 

**5.02.****      ****Authorization; NoContravention**. Theexecution, delivery and performance by each Loan Party of each Loan Document towhich such Person is party, have been duly authorized by all necessarycorporate or other organizational action, and do not and will not (a)contravene the terms of any of such Person’s Organization Documents; (b)conflict with or result in any breach or contravention of, or the creation ofany Lien under (other than Liens created under the Loan Documents), or requireany payment to be made under (i) any Contractual Obligation (other than theLoan Documents) to which such Person is a party or affecting such Person or theproperties of such Person or any of its Subsidiaries or (ii) any order,injunction, writ or decree of any Governmental Authority or any arbitral awardto which such Person or its property is subject; or (c) violate any Law.

 

**5.03.****      ****Governmental Authorization;Other Consents**. No approval,consent, exemption, authorization, or other action by, or notice to, or filingwith, any Governmental Authority or any other Person is necessary or requiredin connection with (a) the execution, delivery or performance by, or 

 

53

----

 

enforcementagainst, any Loan Party of this Agreement or any other Loan Document,(b) the grant by any Loan Party of the Liens granted by it pursuant to theCollateral Documents other than the required approval, if any, of the NewJersey Board of Public Utilities, with respect to the pledge of any RegulatedSubsidiary’s stock pursuant to the Pledge Agreement, (c) the perfection ormaintenance of the Liens created under the Collateral Documents (including thefirst priority nature thereof) or (d) the exercise by the AdministrativeAgent or any Lender of its rights under the Loan Documents or the remedies inrespect of the Collateral pursuant to the Collateral Documents other than therequired approval, if any, of (i) the applicable Governmental Authorities withrespect to the transfer of Equity Interests of any Regulated Subsidiarypursuant to the terms and conditions of the Pledge Agreement and (ii) theUnited States Federal Communications Commission with respect to the transfer ofEquity Interests of M.J. Electric, Inc. pursuant to the terms and conditions ofthe Pledge Agreement.

 

**5.04.****      ****Binding Effect**. This Agreement has been, and each otherLoan Document, when delivered hereunder, will have been, duly executed anddelivered by each Loan Party that is party thereto. This Agreement constitutes,and each other Loan Document when so delivered will constitute, a legal, validand binding obligation of such Loan Party, enforceable against each Loan Partythat is party thereto in accordance with its terms, except (a) enforceabilitymay be limited by applicable Debtor Relief Laws and by general equitableprincipals (whether enforcement is sought by proceedings in equity or at law)and (b) with respect to the Sunesys Pledge, with respect to the matters set forthin Section 8.01(j).

 

**5.05.****      ****Financial Statements; NoMaterial Adverse Effect; No Internal Control Event**.

 

(a)           The Audited Financial Statements (i) were prepared in accordance withGAAP consistently applied throughout the period covered thereby, except asotherwise expressly noted therein and (ii) fairly present in all materialrespects the financial condition of Holdings and its Subsidiaries as of thedate thereof and their results of operations for the period covered thereby inaccordance with GAAP consistently applied throughout the period coveredthereby, except as otherwise expressly noted therein.

 

(b)           The unaudited consolidated balance sheet of Holdings and itsSubsidiaries dated March 31, 2006, and the related consolidated statements ofincome or operations, shareholders’ equity and cash flows for the fiscalquarter ended on that date (i) were prepared in accordance with GAAPconsistently applied throughout the period covered thereby, except as otherwiseexpressly noted therein, and (ii) fairly present in all material respects thefinancial condition of Holdings and its Subsidiaries as of the date thereof andtheir results of operations for the period covered thereby, subject, in thecase of clauses (i) and (ii), to the absence of footnotes and to normalyear-end audit adjustments.

 

(c)           Since the date of the Audited Financial Statements, there has been noevent or circumstance, either individually or in the aggregate, that has had orcould reasonably be expected to have a Material Adverse Effect.

 

(d)           To the knowledge of Holdings and the Borrower, as of the date of thisAgreement, no Internal Control Event exists or has occurred since the date ofthe Audited Financial Statements that has resulted in or could reasonably beexpected to result in a misstatement in any material respect, in any financialinformation delivered to the Administrative Agent or the Lenders, of theassets, liabilities, financial condition or results of operations of Holdingsand its Subsidiaries on a consolidated basis.

 

**5.06.****      ****Litigation**. There are no actions, suits, proceedings,claims or disputes pending or, to the knowledge of Holdings and the Borrower,threatened or contemplated, at law, in equity, in arbitration or before anyGovernmental Authority, by or against Holdings or any of its Subsidiaries oragainst any of their properties or revenues that (a) purport to affect orpertain to this Agreement or any other Loan 

 

54

----

 

Document,or any of the transactions contemplated hereby, or (b) except as specificallydisclosed in Holdings’ SEC filings on the date of this Agreement, eitherindividually or in the aggregate could reasonably be expected to have aMaterial Adverse Effect, and there has been no adverse change that could reasonablybe expected to have a Material Adverse Effect in the status, or financialeffect on any Loan Party or any Subsidiary thereof, of the matters described inHoldings’ SEC filings on the date of this Agreement.

 

**5.07.****      ****No Default**. Neither any Loan Party nor any Subsidiarythereof is in default under or with respect to any Contractual Obligation thatcould, either individually or in the aggregate, reasonably be expected to havea Material Adverse Effect. No Default has occurred and is continuing or wouldresult from the consummation of the transactions contemplated by this Agreementor any other Loan Document.

 

**5.08.****      ****Ownership of Property; Liens**. (a) Each Loan Party and each of itsSubsidiaries has good record and marketable title in fee simple to, or valid leaseholdinterests in, all real property necessary or used in the ordinary conduct ofits business, except for such defects in title as could not, individually or inthe aggregate, reasonably be expected to have a Material Adverse Effect.

 

(b)           Schedule 5.08(b) sets forth a complete and accurate list ofall Liens on the property or assets of each Loan Party and each of itsSubsidiaries, showing as of the date hereof the lienholder thereof, theprincipal amount of the obligations secured thereby and the property or assetsof such Loan Party or such Subsidiary subject thereto. The property of eachLoan Party and each of its Subsidiaries is subject to no Liens, other thanLiens set forth on Schedule 5.08(b), and as otherwise permitted by Section7.01.

 

**5.09.****      ****Environmental Compliance**. Except as specifically disclosed in Schedule 5.09,(a) Holdings and its subsidiaries are in material compliance with allEnvironmental Laws unless the failure to comply could not reasonably beexpected to have a Material Adverse Effect and (b) no claims under theEnvironmental Laws are pending or, to Holdings’ or the Borrower’s knowledge,threatened against Holdings or its Subsidiaries that could, individually or inthe aggregate, reasonably be expected to have a Material Adverse Effect.

 

**5.10.****      ****Insurance**. The properties of Holdings and itsSubsidiaries are insured with financially sound and reputable insurancecompanies, in such amounts, with such deductibles and covering such risks asare customarily carried by companies engaged in similar businesses and owningsimilar properties in localities where Holdings or the applicable Subsidiaryoperates.

 

**5.11.****      ****Taxes**. Holdings and its Subsidiaries have filedall Federal, state and other material tax returns and reports required to befiled, and have paid all Federal, state and other material taxes, assessments,fees and other governmental charges levied or imposed upon them or theirproperties, income or assets otherwise due and payable, except (a) those whichare being contested in good faith by appropriate proceedings diligentlyconducted and for which adequate reserves have been provided in accordance withGAAP and (b) those which could not reasonably be expected to have a MaterialAdverse Effect.

 

**5.12.****      ****ERISA Compliance**.

 

(a)           Each Plan is in compliance in all material respects with the applicableprovisions of ERISA, the Code and other Federal or state Laws. Each Plan thatis intended to qualify under Section 401(a) of the Code has received afavorable determination letter from the IRS or an application for such a letteris currently being processed by the IRS with respect thereto and, to the bestknowledge of Holdings and the Borrower, nothing has occurred which isreasonably expected prevent, or cause the loss of, such 

 

55

----

 

qualification.Each of Holdings, the Borrower and each ERISA Affiliate has made all requiredcontributions to each Plan subject to Section 412 of the Code, and noapplication for a funding waiver or an extension of any amortization periodpursuant to Section 412 of the Code has been made with respect to any Plan.

 

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

 

(c)           Except as could not reasonably be excepted to have a Material AdverseEffect, (i) no ERISA Event has occurred or is reasonably expected to occur;(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neitherHoldings, the Borrower nor any ERISA Affiliate has incurred, or reasonablyexpects to incur, any liability under Title IV of ERISA with respect to anyPension Plan (other than premiums due and not delinquent under Section 4007 ofERISA); (iv) neither Holdings, the Borrower nor any ERISA Affiliate hasincurred, or reasonably expects to incur, any liability (and no event hasoccurred which, with the giving of notice under Section 4219 of ERISA, wouldresult in such liability) under Section 4201 or 4243 of ERISA with respect to aMultiemployer Plan; and (v) neither Holdings, the Borrower nor any ERISAAffiliate has engaged in a transaction that could be subject to Section 4069 or4212(c) of ERISA.

 

**5.13.****      ****Subsidiaries; EquityInterests**. Neither Holdings,the Borrower nor any Guarantor has any Subsidiaries other than thosespecifically disclosed in Part (a) of Schedule 5.13, and all of theoutstanding Equity Interests in such Subsidiaries have been validly issued, arefully paid and nonassessable and are owned by a Loan Party in the amountsspecified on Part (a) of Schedule 5.13 free and clear of all Liens(other than Liens created by the Collateral Documents). All ImmaterialSubsidiaries as of the Closing Date are listed on Part (b) of Schedule 5.13.

 

**5.14.****      ****Margin Regulations;Investment Company Act**.

 

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

 

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

 

**5.15.****      ****Disclosure**. No statement or information contained inthis Agreement, any other Loan Document, the confidential informationmemorandum dated May, 2006 or any other document, certificate or statementfurnished by the Borrower pursuant to the terms of this Agreement to theAdministrative Agent or the Lenders, when taken as a whole, contained as of thedate of such statement, information, document or certificate was furnished, anyuntrue statement of a material fact or omitted a material fact necessary tomake the statements contained herein or therein, in light of the circumstancesunder which they were made, not misleading.

 

**5.16.****      ****Compliance with Laws**. Each Loan Party and each Subsidiary thereofis in compliance in all material respects with the requirements of all Laws andall orders, writs, injunctions and decrees applicable to it or to itsproperties, except in such instances in which (a) such requirement of Law ororder, writ, injunction or decree is being contested in good faith byappropriate proceedings diligently 

 

56

----

 

conductedor (b) the failure to comply therewith, either individually or in theaggregate, could not reasonably be expected to have a Material Adverse Effect.

 

**5.17.****      ****Intellectual Property;Licenses, Etc**. Holdings andits Subsidiaries own, or possess the right to use, all of the trademarks,service marks, trade names, copyrights, patents, patent rights, franchises,licenses and other intellectual property rights (collectively, “IP Rights”)that are reasonably necessary for the operation of their respective businesses,without conflict with the rights of any other Person unless the failure to ownor possess such right to use or such conflict with the rights of others couldnot reasonably be expected to have a Material Adverse Effect.

 

**5.18.****      ****Solvency**. The Borrower is Solvent. As of the date ofthis Agreement, each Loan Party (other than the Borrower) is, individually andtogether with its Subsidiaries on a consolidated basis, Solvent.

 

**5.19.****      ****Collateral Documents**. The provisions of the Collateral Documentsare effective to create in favor of the Administrative Agent for the benefit ofthe Secured Parties a legal, valid and enforceable first priority Lien (subjectto Liens permitted by Section 7.01) on all right, title and interest ofthe respective Loan Parties in the Collateral described therein, expect that,with respect to the Sunesys Pledge, with respect to the matters set forth in Section8.01(l). Except for filings completed prior to the Closing Date and ascontemplated hereby and by the Collateral Documents and the filing of periodiccontinuation statements relating to any financing statements in accordance withUniform Commercial Code as in effect in the applicable jurisdiction, no filingor other action will be necessary to perfect or protect such Liens.

 

**5.20.****      ****Guaranty**. As of the Closing Date, each DomesticSubsidiary of Holdings (other than the Regulated Subsidiaries and the Borrower)has guaranteed the Obligations pursuant to the Guaranty.

 

**5.21.****      ****Regulated Subsidiaries**. As of the Closing Date, no Subsidiary ofHoldings (other than Sunesys, Inc. and Sunesys of Virginia, Inc.) is aRegulated Subsidiary.

 

**ARTICLE VI.****AFFIRMATIVE COVENANTS**

 

So long as any Lender shall have any Commitment hereunder, any Loan orother Obligation hereunder shall remain unpaid or unsatisfied, or any Letter ofCredit shall remain outstanding, each of Holdings and the Borrower shall, andshall (except in the case of the covenants set forth in Sections 6.01, 6.02,and 6.03) cause each Subsidiary to:

 

**6.01.****      ****Financial Statements**. Deliver to the Administrative Agent andeach Lender, in form and detail satisfactory to the Administrative Agent andthe Required Lenders:

 

(a)           as soon as available, but in any event within 105 days after the end ofeach fiscal year of Holdings, a consolidated balance sheet of Holdings and itsSubsidiaries as at the end of such fiscal year, and the related consolidatedstatements of income or operations, shareholders’ equity and cash flows forsuch fiscal year, setting forth in each case in comparative form the figuresfor the previous fiscal year, all in reasonable detail and prepared inaccordance with GAAP, audited and accompanied by (i) a report and opinion of aRegistered Public Accounting Firm of nationally recognized standing, whichreport and opinion shall be prepared in accordance with generally acceptedauditing standards and applicable Securities Laws and shall not be subject toany “going concern” or like qualification or exception or any qualification orexception as to the scope of such audit or with respect to the absence of anymaterial misstatement and (ii) an opinion of such Registered Public AccountingFirm independently assessing the 

 

57

----

 

Borrower’sinternal controls over financial reporting in accordance with Item 308 of SECRegulation S-K, PCAOB Auditing Standard No. 2, and Section 404 ofSarbanes-Oxley; and

 

(b)           as soon as available, but in any event within 45 days after the end ofeach of the first three fiscal quarters of each fiscal year of Holdings aconsolidated balance sheet of Holdings and its Subsidiaries as at the end ofsuch fiscal quarter, and the related consolidated statements of income oroperations, shareholders’ equity and cash flows for such fiscal quarter and forthe portion of Holding’s fiscal year then ended, setting forth in each case incomparative form the figures for the corresponding fiscal quarter of theprevious fiscal year and the corresponding portion of the previous fiscal year,all in reasonable detail, certified by the chief executive officer, chieffinancial officer, treasurer or controller of Holdings as fairly presenting inall material respects the financial condition, results of operations,shareholders’ equity and cash flows of Holdings and its Subsidiaries inaccordance with GAAP, subject only to normal year-end audit adjustments and theabsence of footnotes.

 

As to any information contained in materials furnished pursuant to Section6.02(b), the Borrower shall not be separately required to furnish suchinformation under clause (a) or (b) above, but the foregoing shall not be inderogation of the obligation of the Borrower to furnish the information andmaterials described in clauses (a) and (b) above at the times specifiedtherein.

 

**6.02.****      ****Certificates; OtherInformation**. Deliver to theAdministrative Agent and each Lender, in form and detail satisfactory to theAdministrative Agent and the Required Lenders;

 

(a)           concurrently with the delivery of the financial statements referred toin Sections 6.01(a) and (b), a duly completed ComplianceCertificate signed by the chief executive officer, chief financial officer,treasurer or controller of Holdings;

 

(b)           promptly after the same are available, copies of each annual report,proxy or financial statement or other report or communication sent to thestockholders of any Loan Party, and copies of all annual, regular, periodic andspecial reports and registration statements (excluding any registrationstatements on Form S-8) which any Loan Party may file or be required to filewith the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934,and not otherwise required to be delivered to the Administrative Agent pursuanthereto;

 

(c)           promptly after the furnishing thereof and only to the extent nototherwise disclosed in Holdings’ SEC filings, copies of any statement or reportfurnished to any holder of the Subordinated Debt or unsecured senior debtpermitted under Section 7.03(j) and not otherwise required to befurnished to the Lenders pursuant to Section 6.01 or any other clause ofthis Section 6.02;

 

(d)           within 45 days after the end of each of the first three fiscal quartersof each fiscal year of Holdings and within****105days after the end of the fourth fiscal quarter of each fiscal year ofHoldings, a narrative discussion and analysis of the financial condition andresults of operations of Holdings and its Subsidiaries for such fiscal quarterand for the period from the beginning of the fiscal year in which such fiscalquarter is included to the end of such fiscal quarter; and

 

(e)           promptly, such additional information regarding the business, financialor corporate affairs of Holdings or any Subsidiary, or compliance with theterms of the Loan Documents, as the Administrative Agent or any Lender may fromtime to time reasonably request.

 

Documents required to be delivered pursuant to Section 6.01(a)or (b) or Section 6.02(b) (to the extent any such documents areincluded in materials otherwise filed with the SEC) may be deliveredelectronically and if so delivered, shall be deemed to have been delivered onthe date (i) on which the 

 

58

----

 

Borrowerposts such documents, or provides a link thereto on the Borrower’s website onthe Internet at the website address listed on Schedule 11.02; or (ii) onwhich such documents are posted on the Borrower’s behalf on an Internet orintranet website, if any, to which each Lender and the Administrative Agent haveaccess (whether a commercial, third-party website or whether sponsored by theAdministrative Agent); provided that: (i) the Borrower shall deliverpaper copies of such documents to the Administrative Agent or any Lender thatrequests the Borrower to deliver such paper copies until a written request tocease delivering paper copies is given by the Administrative Agent or suchLender and (ii) the Borrower shall notify the Administrative Agent and eachLender (by telecopier or electronic mail) of the posting of any such documentsand provide to the Administrative Agent by electronic mail electronic versions(i.e., soft copies) of such documents. Notwithstanding anythingcontained herein, in every instance the Borrower shall be required to providepaper copies of the Compliance Certificates required by Section 6.02(a)to the Administrative Agent. Except for such Compliance Certificates, theAdministrative Agent shall have no obligation to request the delivery or tomaintain copies of the documents referred to above, and in any event shall haveno responsibility to monitor compliance by the Borrower with any such requestfor delivery, and each Lender shall be solely responsible for requestingdelivery to it or maintaining its copies of such documents.

 

Each of Holdings and the Borrower hereby acknowledges that (a) theAdministrative Agent and/or the Arranger will make available to the Lenders andthe L/C Issuer materials and/or information provided by or on behalf of theLoan Parties hereunder (collectively, “Borrower Materials”) by postingthe Borrower Materials on IntraLinks or another similar electronic system (the“Platform”) and (b) certain of the Lenders may be “public-side” Lenders(*i.e.,* Lenders that do not wishto receive material non-public information with respect to any Loan Party orits securities) (each, a “Public Lender”). Each of Holdings and theBorrower hereby agrees that so long as such Loan Party is the issuer of anyoutstanding debt or equity securities that are registered or issued pursuant toa private offering or is actively contemplating issuing any such securities (w)all Borrower Materials that are to be made available to Public Lenders shall beclearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean thatthe word “PUBLIC” shall appear prominently on the first page thereof; (x) bymarking Borrower Materials “PUBLIC,” the Loan Parties shall be deemed to haveauthorized the Administrative Agent, the Arranger, the L/C Issuer and theLenders to treat such Borrower Materials as not containing any materialnon-public information with respect to any Loan Party or its securities forpurposes of United States Federal and state securities laws (provided, however,that to the extent such Borrower Materials constitute Information, they shallbe treated as set forth in Section 11.07); (y) all Borrower Materialsmarked “PUBLIC” are permitted to be made available through a portion of thePlatform designated “Public Investor;” and (z) the Administrative Agent and theArranger shall be entitled to treat any Borrower Materials that are not marked“PUBLIC” as being suitable only for posting on a portion of the Platform notdesignated “Public Investor.”

 

**6.03.****      ****Notices**. Promptly notify the Administrative Agentand each Lender:

 

(a)           of the occurrence of any Default; and

 

(b)           of the occurrence of any ERISA Event.

 

Each notice pursuant to this Section 6.03 shall be accompaniedby a statement of a Responsible Officer of the Borrower setting forth detailsof the occurrence referred to therein and stating what action the Borrower hastaken and proposes to take with respect thereto.

 

**6.04.****      ****Payment of Obligations**. Pay and discharge as the same shall becomedue and payable, (a) all material tax liabilities, assessments and governmentalcharges or levies upon it or its properties or 

 

59

----

 

assets,unless the same are being contested in good faith by appropriate proceedingsdiligently conducted and adequate reserves in accordance with GAAP are beingmaintained by Holdings or such Subsidiary and (b) all lawful claims which, ifunpaid, would by law become a Lien upon its property.

 

**6.05.****      ****Preservation of Existence,Etc**. (a) Preserve, renew andmaintain in full force and effect its legal existence and good standing underthe Laws of the jurisdiction of its organization except in a transactionpermitted by Section 7.04 or 7.05; (b) take all reasonable actionto maintain all rights, privileges, permits, licenses and franchises necessaryor desirable in the normal conduct of its business, except to the extent thatfailure to do so could not reasonably be expected to have a Material AdverseEffect; and (c) preserve or renew all of its registered patents, trademarks,trade names and service marks, the non-preservation of which could reasonablybe expected to have a Material Adverse Effect.

 

**6.06.****      ****Maintenance of Properties**. (a) Maintain, preserve and protect all ofits material properties and equipment necessary in the operation of itsbusiness in good working order and condition, ordinary wear and tear excepted;(b) make all necessary repairs thereto and renewals and replacements thereofexcept where the failure to do so could not reasonably be expected to have aMaterial Adverse Effect; and (c) use the standard of care typical in theindustry in the operation and maintenance of its facilities.

 

**6.07.****      ****Maintenance of Insurance**. Maintain with financially sound andreputable insurance companies, insurance with respect to its properties andbusiness against loss or damage of the kinds customarily insured against byPersons engaged in the same or similar business, of such types and in suchamounts as are customarily carried under similar circumstances by such otherPersons and providing for not less than 30 days’ prior notice to theAdministrative Agent of termination, lapse or cancellation of such insurance.

 

**6.08.****      ****Compliance with Laws**. Comply in all material respects with therequirements of all Laws and all orders, writs, injunctions and decreesapplicable to it or to its business or property, except in such instances inwhich (a) such requirement of Law or order, writ, injunction or decree is beingcontested in good faith by appropriate proceedings diligently conducted; or (b)the failure to comply therewith could not reasonably be expected to have aMaterial Adverse Effect.

 

**6.09.****      ****Books and Records**. (a) Maintain proper books of record and account, in which full, true andcorrect entries, in all material respects, in conformity with GAAP consistentlyapplied shall be made of all financial transactions and matters involving theassets and business of Holdings or such Subsidiary, as the case may be; and (b)maintain such books of record and account in material conformity with allapplicable requirements of any Governmental Authority having regulatoryjurisdiction over Holdings or such Subsidiary, as the case may be.

 

**6.10.****      ****Inspection of Properties andBooks, etc**.. Permitrepresentatives and independent contractors of the Administrative Agent andeach Lender to visit and inspect any of its properties, to examine itscorporate, financial and operating records, and make copies thereof orabstracts therefrom, and to discuss its affairs, finances and accounts with itsdirectors, officers, and independent public accountants, all at the expense ofthe Lenders and at such reasonable times during normal business hours and asoften as may be reasonably desired, upon reasonable advance notice to theBorrower; provided, however, that when an Event of Defaultexists, the Administrative Agent or any Lender (or any of their respectiverepresentatives or independent contractors) may do any of the foregoing at theexpense of the Borrower at any time during normal business hours and withoutadvance notice.

 

60

----

 

**6.11.****      ****Use of Proceeds**. Use the proceeds of the Credit Extensionsfor general corporate purposes not in contravention of any Law or of any LoanDocument.

 

**6.12.****      ****Covenant to GuaranteeObligations and Give Security**.(a) Upon (x) the formation or acquisition of any new direct or indirectSubsidiary (other than any CFC or a Subsidiary that is held directly orindirectly by a CFC) by any Loan Party or (y) the receipt by a Subsidiary ofthe necessary approvals and/or consents pursuant to Section 6.14, then,in each case, the Borrower shall, at the Borrower’s expense:

 

(i)            within 30 days after such formation,acquisition or receipt of such approvals and/or consents cause such Subsidiary(other than a Regulated Subsidiary), and cause each direct and indirect parentof such Subsidiary (if it has not already done so), to duly execute and deliverto the Administrative Agent a guaranty or guaranty supplement, in form andsubstance satisfactory to the Administrative Agent, guaranteeing the other LoanParties’ obligations under the Loan Documents,

 

(ii)           within 30 days after such formation,acquisition or receipt of such approvals and/or consents, furnish to theAdministrative Agent a description of the personal properties of suchSubsidiary, in detail satisfactory to the Administrative Agent,

 

(iii)          within 30 days after such formation,acquisition or receipt of such approvals and/or consents, cause such Subsidiaryand each direct and indirect parent of such Subsidiary (if it has not alreadydone so) to duly execute and deliver to the Administrative Agent a SecurityAgreement and other security and pledge agreements, as specified by and in formand substance satisfactory to the Administrative Agent (including delivery ofall pledged Equity Interests in and of such Subsidiary, and other instrumentsof the type specified in Section 4.01(a)(iii)), securing payment of allthe Obligations of such Subsidiary or such parent, as the case may be, underthe Loan Documents and constituting Liens on all such personal properties; providedthat a Regulated Subsidiary shall not be required to execute a SecurityAgreement or otherwise grant a security interest to the Administrative Agent;

 

(iv)          within 30 days after such formation,acquisition, or receipt of such approvals and/or consents, cause suchSubsidiary and each direct and indirect parent of such Subsidiary (if it hasnot already done so) to take whatever action (including the filing of UniformCommercial Code financing statements, the giving of notices and the endorsementof notices on title documents) may be necessary or advisable in the opinion ofthe Administrative Agent to vest in the Administrative Agent (or in anyrepresentative of the Administrative Agent designated by it) valid andsubsisting Liens on the properties purported to be subject to the SecurityAgreement and security and pledge agreements delivered pursuant to this Section 6.12,enforceable against all third parties in accordance with their terms, and

 

(v)           within 30 days after such formation,acquisition or receipt of such approvals and/or consents (other than withrespect to the formation or acquisition of an Immaterial Subsidiary), deliverto the Administrative Agent, upon the request of the Administrative Agent inits sole discretion, a signed copy of a favorable opinion, addressed to theAdministrative Agent and the other Secured Parties, of counsel for the LoanParties acceptable to the Administrative Agent as to the matters contained inclauses (i), (iii) and (iv) above, and as to such other matters as the AdministrativeAgent may reasonably request.

 

61

----

 

(b)           Upon the formation or acquisition by any Loan Party of any new director indirect Subsidiary that is a CFC or of a Subsidiary that is held directlyor indirectly by a CFC, the Borrower shall, at the Borrower’s expense, (i)within 30 days after such formation or acquisition, cause such Loan Party topledge to the Administrative Agent all of such Subsidiary’s non-voting EquityInterests and 66% of the total combined voting Equity Interests of suchSubsidiaries that are held directly or indirectly by such Loan Party pursuantto a pledge agreement in form and substance satisfactory to the AdministrativeAgent; and (ii) take such other actions and deliver, or caused to be delivered,such other documents and opinions as required by Section 6.12(iv) and (v)in connection with such pledge.

 

**6.13.****      ****Further Assurances**. Promptly upon request by the AdministrativeAgent, or any Lender through the Administrative Agent, (a) correct any materialdefect or error that may be discovered in any Loan Document (which correctionshall also be executed by the Administrative Agent and the Lenders) or in theexecution, acknowledgment, filing or recordation thereof, and (b) do, execute,acknowledge, deliver, record, re-record, file, re-file, register andre-register any and all such further acts, deeds, certificates, assurances andother instruments as the Administrative Agent, or any Lender through theAdministrative Agent, may reasonably require from time to time in order to (i)carry out more effectively the purposes of the Loan Documents, (ii) to thefullest extent permitted by applicable law, subject any Loan Party’s or any ofits Subsidiaries’ properties, assets, rights or interests which constituteCollateral to the Liens now or hereafter intended to be covered by any of theCollateral Documents, (iii) perfect and maintain the validity, effectivenessand priority of any of the Collateral Documents and any of the Liens intendedto be created thereunder (other than, with respect to the Sunesys Pledge, withrespect to the matters set forth in Section 8.01(j)) and (iv) assure,convey, grant, assign, transfer, preserve, protect and confirm more effectivelyunto the Secured Parties the rights granted or now or hereafter intended to begranted to the Secured Parties under any Loan Document or under any otherinstrument executed in connection with any Loan Document to which any LoanParty or any of its Subsidiaries is or is to be a party, and cause each of itsSubsidiaries to do so.

 

**6.14.****      ****Regulated Subsidiaries;Approval**. (a) Within areasonable period of time following the Closing Date (not to exceed fifteendays), commence to diligently pursue, on a commercially reasonably basis, allrequired consents and approvals from each applicable Governmental Authority sothat (i) each Regulated Subsidiary existing on the Closing Date may guaranteethe Indebtedness pursuant to the Guaranty and grant Liens to the AdministrativeAgent pursuant to the Security Agreement and (ii) each parent of such RegulatedSubsidiary may pledge the Equity Interests of such Regulated Subsidiary to theAdministrative Agent and (b) within a reasonable period of time following theformation or acquisition of any Regulated Subsidiary after the Closing Date(not to exceed fifteen days), commence to diligently pursue, on a commerciallyreasonably basis, all required consents and approvals from each applicableGovernmental Authority so that (i) such Regulated Subsidiary may guarantee theIndebtedness pursuant to the Guaranty and grant Liens to the AdministrativeAgent pursuant to the Security Agreement and (ii) each parent of such RegulatedSubsidiary may pledge the Equity Interests of such Regulated Subsidiary to theAdministrative Agent

 

**6.15.****      ****Mechanical Specialties**. In the event that Borrower has not providedsatisfactory evidence to the Administrative Agent within 90 days following theClosing Date that Mechanical Specialties, Inc. consummated a sale of all orsubstantially all of its assets and has subsequently dissolved, MechanicalSpecialties, Inc. shall become a Guarantor pursuant to Section 6.12 andexecute and/or deliver all security agreements, pledge agreements andcertificates required to be executed and/or delivered pursuant to Section6.12.

 

62

----

 

**ARTICLE VII.****NEGATIVE COVENANTS**

 

So long as any Lender shall have any Commitment hereunder, any Loan orother Obligation hereunder shall remain unpaid or unsatisfied, or any Letter ofCredit shall remain outstanding, neither Holdings or the Borrower shall, norshall they permit any Subsidiary to, directly or indirectly:

 

**7.01.****      ****Liens**. Create, incur, assume or suffer to existany Lien upon any of its property, assets or revenues, whether now owned orhereafter acquired, or sign or file or suffer to exist under the UniformCommercial Code of any jurisdiction a financing statement that names Holdingsor any of its Subsidiaries as debtor, or assign any accounts or other right toreceive income, other than the following:

 

(a)           Liens pursuant to any Loan Document;

 

(b)           Liens existing on the date hereof and listed on Schedule 5.08(b)and any renewals or extensions thereof, provided that (i) the propertycovered thereby is not changed, (ii) the amount secured or benefited thereby isnot increased except as contemplated by Section 7.03(b), (iii) thedirect or any contingent obligor with respect thereto is not changed, and (iv)any renewal or extension of the obligations secured or benefited thereby is permittedby Section 7.03(b);

 

(c)           Liens for taxes not yet due or which are being contested in good faithand by appropriate proceedings diligently conducted, if adequate reserves withrespect thereto are maintained on the books of the applicable Person inaccordance with GAAP;

 

(d)           carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s orother like Liens arising in the ordinary course of business which are notoverdue for a period of more than 60 days or which are being contested in goodfaith and by appropriate proceedings diligently conducted, if adequate reserveswith respect thereto are maintained on the books of the applicable Person;

 

(e)           pledges or deposits in the ordinary course of business in connectionwith workers’ compensation, unemployment insurance and other social securitylegislation, other than any Lien imposed by ERISA;

 

(f)            easements, rights-of-way, restrictions andother similar encumbrances affecting real property which, in the aggregate, arenot substantial in amount, and which do not in any case materially detract fromthe value of the property subject thereto or materially interfere with theordinary conduct of the business of the applicable Person;

 

(g)           Liens securing judgments for the payment of money not constituting an Eventof Default under Section 8.01(h);

 

(h)           Liens securing Indebtedness permitted under Section 7.03(e); providedthat (i) such Liens do not at any time encumber any property other than theproperty financed by such Indebtedness and (ii) the Indebtedness securedthereby does not exceed the cost or fair market value, whichever is lower, ofthe property being acquired on the date of acquisition;

 

(i)            any interest or title of a lessor, licensoror sublessor under any lease, license or sublease entered into by the Borroweror any other Subsidiary in the ordinary course of its business and coveringonly the assets so leased, licensed or subleased;

 

63

----

 

(j)            Liens arising out of any conditional sale,title retention, consignment or other similar arrangements for the sale ofgoods by the Borrower or any of its Subsidiaries in the ordinary course ofbusiness to the extent such Liens do not attach to any assets other than thegoods subject to such arrangements;

 

(k)           Liens on insurance policies and the proceeds thereof pursuant toinsurance premium financing arrangements;

 

(l)            Liens (i) incurred in the ordinary course ofbusiness in connection with the purchase or shipping of goods or assets (or therelated assets and proceeds thereof), which Liens are in favor of the seller orshipper of such goods or assets and only attached to such goods or assets, and(ii) in favor of customs and revenue authorities arising as a matter of law tosecure payment of customs duties in connection with the importation of goods;

 

(m)          Liens in favor of collecting banks having a right of setoff,revocation, refund or chargeback with respect to money or instruments of theBorrower or any of its Subsidiaries on deposits with or in possession of suchbanks, other than relating to Indebtedness;

 

(n)           Liens on the assets of Foreign Subsidiaries that are not Guarantors inconnection with financing arrangements for their benefit that are not otherwiseprohibited under this Agreement;

 

(o)           purported Liens evidenced by the filing of precautionary UCC financingstatements relating solely to operating leases of personal property enteredinto in the ordinary course of business;

 

(p)           (i) deposits to secure the performance of bids, trade contracts andleases (other than Indebtedness), statutory obligations, surety and appealbonds, performance bonds and other obligations of a like nature incurred in theordinary course of business and (ii) Liens on cash reserves securingIndebtedness of the Borrower and its Subsidiaries in respect of letters ofcredit or surety bonds permitted by Section 7.03(g); and Liens on cashreserves securing other obligations of the Borrower and its Subsidiaries inrespect of letters of credit or surety bonds arising in the ordinary course ofbusiness, to the extent not provided to secure the repayment of otherIndebtedness of the Borrower and its Subsidiaries; provided that theaggregate amount of all such deposits and cash reserves provided by theBorrower and its Subsidiaries in respect of surety bonds shall not, at anytime, exceed ten percent (10%) of the aggregate backlog of all contractscovered by surety bonds;

 

(q)           Liens on contracts entered into with its customers by Holdings or anyof its Subsidiaries, and on all assets related thereto and to the projects thatare the subject thereof, to secure the obligations of Holdings or suchSubsidiary in respect of surety bonds issued on its behalf (the issuer thereof,the “Surety”) to assure performance of such contracts (each suchcontract, a “Bonded Contract”); provided that (i) all such Liens(other than those on accounts receivable due and to become due with respect toall Bonded Contracts, contract rights related to such accounts receivable andmaterials purchased for incorporation in any project that is the subject of aBonded Contract) shall be subject, subordinate and junior to the Liens on theassets that are subject thereto created by the Collateral Documents and (ii)prior to the creation of any such Liens each Person (directly or through itsagent) which is to be secured thereby shall have entered into with theAdministrative Agent, on behalf of the Lenders, an Intercreditor Agreementwhich is in form and substance satisfactory to the Administrative Agent; and

 

(r)            Liens not otherwise permitted by this Sectionso long as the aggregate outstanding principal amount of the obligationssecured thereby do not exceed $10,000,000 at any one time; and

 

64

----

 

(s)           Liens deemed to exist in connection with Investments in repurchaseagreements permitted under Section 7.02.

 

**7.02.****      ****Investments**. Make any Investments, except:

 

(a)           Investments held by the Borrower or such Subsidiary in the form of CashEquivalents;

 

(b)           advances (i) to employees of the Borrower and Subsidiaries in theordinary course of business and (ii) to officers and directors of the Borrowerand Subsidiaries in an aggregate amount not to exceed $1,000,000 at any timeoutstanding, for travel, entertainment, relocation and analogous ordinarybusiness purposes;

 

(c)           Investments of the Borrower in any Guarantor and Investments of anyGuarantor in the Borrower or in another Guarantor;

 

(d)           Investments consisting of extensions of credit in the nature ofaccounts receivable or notes receivable arising from the grant of trade creditin the ordinary course of business, and Investments received in satisfaction orpartial satisfaction thereof from financially troubled account debtors to theextent reasonably necessary in order to prevent or limit loss;

 

(e)           Guarantees permitted by Section 7.03;

 

(f)            Investments existing on the date hereof;provided that, any existing Investment consisting of intercompany loans by anyLoan Party in a Person that is a Regulated Subsidiary that is not a Guarantor(A) shall be evidenced by an intercompany note or notes, (B) such notes shallbe in form and substance reasonably satisfactory to the Administrative Agentand (C) such notes shall be pledged and delivered to the Administrative Agentas Collateral;

 

(g)           Investments by the Borrower in Swap Contracts permitted under Section 7.03(d);

 

(h)           Investments by the Borrower or a Guarantor consisting of the purchaseor other acquisition of all of the Equity Interests in, or all or substantiallyall of the property of, any Person or a line of business or a division of suchPerson that, upon the consummation thereof, will be wholly-owned directly bythe Borrower or one or more of its wholly-owned Subsidiaries (including as aresult of a merger or consolidation) (each, a “Permitted Acquisition”); providedthat, with respect to each purchase or other acquisition made pursuant to this Section7.03(h):

 

(i)            any such newly-created or acquired Subsidiaryshall comply with the requirements of Section 6.12;

 

(ii)           the lines of business of the Person to be (orthe property of which is to be) so purchased or otherwise acquired shall not besubstantially different from the lines of business conducted by the Borrowerand its Subsidiaries on the date hereof or any business substantially related orincidental thereto;

 

(iii)          (A) immediately before and immediately aftergiving pro forma effect to any such purchase or other acquisition (includingthe revenues and expenses (less Permitted Cost-Savings)), no Default shall haveoccurred and be continuing and (B) immediately after giving effect to suchpurchase or other acquisition, Holdings and its Subsidiaries shall be in proforma compliance with all of the covenants set forth in Section 7.11,such compliance to be determined on the basis of the financial information mostrecently delivered to the Administrative Agent and 

 

65

----

 

the Lenders pursuant to Section 6.01(a) or (b) as thoughsuch purchase or other acquisition had been consummated as of the first day ofthe fiscal period covered thereby;

 

(iv)          after giving effect to such PermittedAcquisition, the sum of (i) the Aggregate Commitments minus the Total RevolvingCredit Outstandings plus (ii) the aggregate amount of cash and Cash Equivalentsthen held by the Borrower and its Subsidiaries shall be no less than$15,000,000; and

 

(v)           in the case of any newly created or acquiredRegulated Subsidiary that is not a Guarantor or Foreign Subsidiary that is nota Guarantor, such Investment shall be permitted by clause (i)(iii) or, asapplicable, clause (i)(iv) of this Section.

 

(i)            (i) intercompany Investments by any LoanParty in the Borrower or any Person that, prior to such investment, is aGuarantor, (ii) Investments by any Foreign Subsidiary that is not a Guarantorin any Person that, prior to such Investment, is a Foreign Subsidiary and not aGuarantor, (iii) Investments by any Loan Party in any Foreign Subsidiary in anaggregate amount outstanding at any time not to exceed $5,000,000 (after givingeffect to any portion of any such Investment returned to the investor in cash,whether as a repayment of principal or a return of invested capital, asthe case may be, but without giving effect to any earnings on such Investment,whether in the form of interest, dividends or otherwise), and (iv) Investmentsconsisting of intercompany loans by any Loan Party (other than a ForeignSubsidiary) in a Person that, prior to such Investment, is a RegulatedSubsidiary that is not a Guarantor in an aggregate amount outstanding at anytime not to exceed $75,000,000 (after giving effect to any portion of any suchInvestment returned to the investor in cash, whether as a repayment ofprincipal or a return of invested capital, as the case may be, but withoutgiving effect to any earnings on such Investment, whether in the form ofinterest, dividends or otherwise); provided that (A) all such loans areevidenced by an intercompany note or notes, (B) such notes are in form andsubstance reasonably satisfactory to the Administrative Agent and (C) suchnotes are pledged and delivered to the Administrative Agent as Collateral.

 

(j)            Investments (including Indebtedness andEquity Interests) received in connection with the bankruptcy or reorganizationof suppliers and customers and in settlement of delinquent obligations of, andother disputes with, customers and suppliers arising in the ordinary course ofbusiness;

 

(k)           without duplication, Investments that constitute Capital Expenditurespermitted pursuant to Section 7.12;

 

(l)            Investments funded through substantiallyconcurrent capital contributions to Holdings or substantially concurrent salesor issuances of Equity Interests of Holdings; provided, that theproceeds (if any) of such capital contributions, sales or issuances arecontributed by Holdings, directly or indirectly through any Subsidiary, to theBorrower or a Subsidiary of the Borrower, as the case may be, making suchInvestment or used to fund the acquisition of Investments which are socontributed to the Borrower or a Subsidiary of the Borrower;

 

(m)          guarantees by the Borrower of employment contracts entered into betweenHoldings and officers of Holdings and its Subsidiaries; and

 

(n)           in addition to Investments otherwise expressly permitted by thisSection, Investments by the Borrower or any of its Subsidiaries in an aggregateamount (valued at cost but giving effect to any portion of such Investmentsreturned to the investor in cash as a repayment of principal or a return ofinvested capital but without giving effect to any earnings on such Investment,whether in the form of interest, dividends or otherwise) not to exceed$10,000,000 in any fiscal year of Holdings.

 

66

----

 

**7.03.****      ****Indebtedness**. Create, incur, assume or suffer to existany Indebtedness, except:

 

(a)           Indebtedness under the Loan Documents;

 

(b)           Indebtedness outstanding on the date hereof and listed on Schedule7.03 and any refinancings, refundings, renewals or extensions thereof; providedthat (i) the amount of such Indebtedness is not increased at the time of suchrefinancing, refunding, renewal or extension except by an amount equal to areasonable premium or other reasonable amount paid, and fees and expensesreasonably incurred, in connection with such refinancing and by an amount equalto any existing commitments unutilized thereunder and (ii) the terms relatingto principal amount, amortization, maturity, collateral (if any) andsubordination (if any), and other material terms taken as a whole, of any suchrefinancing, refunding, renewing or extending Indebtedness, and of anyagreement entered into and of any instrument issued in connection therewith,are no less favorable in any material respect to the Loan Parties or theLenders than the terms of any agreement or instrument governing theIndebtedness being refinanced, refunded, renewed or extended and the interestrate applicable to any such refinancing, refunding, renewing or extendingIndebtedness does not exceed the then applicable market interest rate;

 

(c)           Guarantees of the Borrower or any Guarantor in respect of Indebtednessotherwise permitted hereunder of the Borrower or any other Guarantor;

 

(d)           obligations (contingent or otherwise) of the Borrower or any Subsidiaryexisting or arising under any Swap Contract, provided that (i) suchobligations are (or were) entered into by such Person in the ordinary course ofbusiness for the purpose of directly mitigating risks associated withliabilities, commitments, investments, assets, or property held or reasonablyanticipated by such Person, or changes in the value of securities issued bysuch Person, and not for purposes of speculation or taking a “market view;” and(ii) such Swap Contract does not contain any provision exonerating thenon-defaulting party from its obligation to make payments on outstandingtransactions to the defaulting party;

 

(e)           Indebtedness in respect of capital leases, Synthetic Lease Obligationsand purchase money obligations for fixed or capital assets within thelimitations set forth in Section 7.01(h); provided, however,that the aggregate amount of all such Indebtedness at any one time outstandingshall not exceed $20,000,000;

 

(f)            (i) Indebtedness of the Borrower to anyGuarantor, (ii) Indebtedness of any Guarantor (other than Holdings) to the Borroweror any other Guarantor, (iii) Indebtedness of a Regulated Subsidiary that isnot a Guarantor to the Borrower or any Guarantor to the extent suchIndebtedness constitutes an Investment permitted under Section 7.02(i)(iv),(iv) Indebtedness of any Foreign Subsidiary that is a Guarantor to any otherForeign Subsidiary, and (v) Indebtedness in an aggregate principal amount notto exceed $5,000,000 of all Foreign Subsidiaries;

 

(g)           Indebtedness in respect of performance bonds, bid bonds, appeal bonds,bankers acceptances, letters of credit, surety bonds or other similarobligations arising in the ordinary course of business, and any refinancingsthereof to the extent not provided to secure the repayment of otherIndebtedness (including Guarantee Obligations relating thereto);

 

(h)           Indebtedness arising from the honoring by a bank or other financialinstitution of a check, draft or similar instrument drawn against insufficientfunds in the ordinary course of business, provided that suchIndebtedness is extinguished within five Business Days after its incurrence;

 

(i)            Indebtedness of the Borrower or any of itsSubsidiaries consisting of the financing of insurance premiums in the ordinarycourse of business;

 

67

----

 

(j)            Indebtedness of the Borrower consisting ofunsecured senior debt or unsecured Subordinated Debt in an aggregate amount notto exceed $150,000,000, in each case, on terms and conditions reasonablysatisfactory to the Administrative Agent (including, without limitation,satisfactory evidence of pro forma compliance with all financial covenantscontained in Section 7.11 after giving effect to such incurrence ofIndebtedness under this clause (j)) and any refinancing of such Indebtednesspermitted under Section 7.15;

 

(k)           Indebtedness of the Borrower or any Subsidiary Guarantor assumed inconnection with any Permitted Acquisition; provided, however,that such Indebtedness existed at the time of the completion of such PermittedAcquisition and was not incurred or created in anticipation of such PermittedAcquisition; and

 

(l)            Other Indebtedness of the Borrower and theGuarantors in an aggregate amount not to exceed $5,000,000.

 

**7.04.****      ****Fundamental Changes**. Merge, dissolve, liquidate, consolidatewith or into another Person, or Dispose of (whether in one transaction or in aseries of transactions) all or substantially all of its assets (whether nowowned or hereafter acquired) to or in favor of any Person, except that, so longas no Default exists or would result therefrom:

 

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

 

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

 

(c)           any Immaterial Subsidiary may liquidate, wind up or dissolve.

 

**7.05.****      ****Dispositions**. Make any Disposition or enter into anyagreement to make any Disposition, except:

 

(a)           Dispositions of obsolete, worn out, replaced or upgraded property orproperty that the Borrower and its Subsidiaries have ceased to use or need inthe ordinary conduct of their business, whether now owned or hereafteracquired, in the ordinary course of business;

 

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

 

(c)           Dispositions of equipment or real property to the extent that (i) suchproperty is identified on Schedule 7.05. (ii) such property is exchangedfor credit against the purchase price of similar replacement property or (iii)the proceeds of such Disposition are reasonably promptly applied to thepurchase price of such replacement property;

 

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

 

(e)           Dispositions permitted by Section 7.04;

 

(f)            the Disposition of cash or Cash Equivalentsin the ordinary course of business;

 

68

----

 

(g)           non-exclusive licenses of IP Rights in the ordinary course of businessand substantially consistent with past practice for terms not exceeding fiveyears; and

 

(h)           Dispositions by the Borrower and its Subsidiaries not otherwisepermitted under this Section 7.05; provided that (i) at the timeof such Disposition, no Default shall exist or would result from suchDisposition and (ii) the aggregate book value of all property Disposed of inreliance on this clause (h) in any fiscal year shall not exceed $20,000,000.

 

**7.06.****      ****Restricted Payments**. Declare or make, directly or indirectly,any Restricted Payment, or incur any obligation (contingent or otherwise) to doso, or issue or sell any Equity Interests, except:

 

(a)           each Subsidiary may make Restricted Payments to Holdings, the Borrower,the Guarantors and any other Person that owns an Equity Interest in suchSubsidiary, ratably according to their respective holdings of the type ofEquity Interest in respect of which such Restricted Payment is being made;

 

(b)           Holdings and each Subsidiary may declare and make dividend payments orother distributions payable solely in the common stock or other common EquityInterests of such Person;

 

(c)           Holdings and each Subsidiary may purchase, redeem or otherwise acquireEquity Interests issued by it with the proceeds received from the substantiallyconcurrent issue of new shares of its common stock or other common EquityInterests;

 

(d)           Holdings may declare or pay cash dividends to its stockholders and makeredemptions or purchases of its Equity Interests in any fiscal year of Holdingsin an amount not to exceed 50% of Consolidated Net Income for such fiscal year;provided, that (i) the Consolidated Leverage Ratio, determined as of theend of the most recent fiscal quarter (calculated on a pro forma basis toinclude any borrowings used to make any dividend or redemption) is less than2.00:1.00 and (ii) no Default or Event of Default shall have occurred or becontinuing at the time of the making of such dividend or redemption;

 

(e)           the Borrower may declare and pay cash dividends to Holdings not toexceed an amount necessary to permit Holdings to pay (i) reasonable andcustomary corporate and operating expenses (including reasonable out-of-pocketexpenses for legal, administrative and accounting services provided by thirdparties, and compensation, benefits and other amounts payable to officers andemployees in connection with their employment in the ordinary course ofbusiness and to board of director observers) , (ii) franchise fees or similartaxes and fees required to maintain its corporate existence, (iii) itsproportionate share of the tax liability of the affiliated group ofcorporations that file consolidated Federal income tax returns (or that filestate and local income tax returns on a consolidated basis) as determined usingany method permitted by Section 1552 of the Code or Section 1.1502-33(d) of theTreasury Regulations****and (iv) toprovide funding of Restricted Payments permitted under Section 7.06(d); and

 

(f)            so long as no Default or Event of Defaultshall have occurred and be continuing, the Borrower may pay dividends toHoldings to permit Holdings to purchase Holding’s common stock or common stockoptions from present or former officers or employees of any of Holdings or itsSubsidiaries upon the death, disability or termination of employment of suchofficer or employee or pursuant to the terms of any stock option plan or likeagreement.

 

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

 

69

----

 

**7.08.****      ****Transactions with Affiliates**. Enter into any transaction of any kind withany Affiliate of the Borrower, whether or not in the ordinary course ofbusiness, other than on fair and reasonable terms substantially as favorable tothe Borrower or such Subsidiary as would be obtainable by the Borrower or suchSubsidiary at the time in a comparable arm’s length transaction with a Personother than an Affiliate, provided that the foregoing restriction shall not applyto transactions between or among the Borrower and any Guarantor or between andamong any Guarantors.

 

**7.09.****      ****Burdensome Agreements**. Enter into any Contractual Obligation(other than this Agreement or any other Loan Document) that (a) limits theability (i) of any Subsidiary to make Restricted Payments to the Borrower orany Guarantor or to otherwise transfer property to the Borrower or anyGuarantor, except for any agreement in effect (A) on the date hereof and setforth on Schedule 7.09 or (B) at the time any Subsidiary becomes aSubsidiary of Holdings, so long as such agreement was not entered into solelyin contemplation of such Person becoming a Subsidiary of Holdings, (ii) of anySubsidiary to Guarantee the Indebtedness of the Borrower or (iii) of theBorrower or any Subsidiary to create, incur, assume or suffer to exist Liens onproperty of such Person; provided, however, that this clause(iii) shall not prohibit any negative pledge incurred or provided in favor ofany holder of Indebtedness permitted under Section 7.03(e) solely to theextent any such negative pledge relates to the property financed by or thesubject of such Indebtedness; or (b) requires the grant of a Lien to secure anobligation of such Person if a Lien is granted to secure another obligation ofsuch Person.

 

**7.10.****      ****Use of Proceeds**. Use the proceeds of any Credit Extension,whether directly or indirectly, and whether immediately, incidentally orultimately, to purchase or carry margin stock (within the meaning of RegulationU of the FRB) or to extend credit to others for the purpose of purchasing orcarrying margin stock or to refund indebtedness originally incurred for suchpurpose.

 

**7.11.****      ****Financial Covenants**.

 

(a)           Consolidated Interest Coverage Ratio. Permit the Consolidated InterestCoverage Ratio as of the end of any fiscal quarter of Holdings to be less than2.00:1.00:

 

(b)           Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio,determined (i) as of the end of any fiscal quarter of Holdings ending prior tothe incurrence of Subordinated Debt and/or senior unsecured debt pursuant to Section7.03(j) in an amount equal to or greater than $25,000,000, to be greaterthan 3.25:1.00 and (ii) as of the end of any fiscal quarter of Holdings endingafter such incurrence, to be greater than 4.00:1.00; provided thatsubsection (i) shall apply if such Subordinated Debt and senior unsecured debtis no longer outstanding.

 

(c)           Consolidated Senior Leverage Ratio. Permit the Consolidated SeniorLeverage Ratio, determined as of the end of any fiscal quarter of Holdingsending after the incurrence of Subordinated Debt and/or senior unsecured debtpursuant to Section 7.03(j) in an amount equal to or greater than$25,000,000, to be greater than 2.50:1.00; provided that this provisionshall not apply if such Subordinated Debt and senior unsecured debt is nolonger outstanding.

 

**7.12.****      ****Capital Expenditures**. Make or become legally obligated to makeCapital Expenditures exceeding, in the aggregate for the Borrower and itSubsidiaries during each fiscal year set forth below, net of the proceedsreceived by the Borrower and its Subsidiaries during such fiscal year fromDispositions of property pursuant to Section 7.05(a), the amount setforth opposite such fiscal year:

 

| **Fiscal Year**                              | ** ** | **Amount** | ** ** |
|---------------------------------------------------|------------|------------|------------|
| 2006                                              |       | $          | 65,000,000 |   |
|                                              |       |       |       |
| 2007 and  each fiscal year of Holdings thereafter |       | $          | 70,000,000 |   |

 

70

----

 

provided, however,that so long as no Default has occurred and is continuing or would result fromsuch expenditure, 50% of any amount set forth above, if not expended in thefiscal year for which it is permitted above, may be carried over forexpenditure in the next following fiscal year.

 

**7.13.****      ****Amendments of OrganizationDocuments**. Amend any of itsOrganization Documents if such amendment could reasonably have a MaterialAdverse Effect.

 

**7.14.****      ****Accounting Changes**. Make any change in Holdings’ fiscal year orthe determination of the quarters within the fiscal year.

 

**7.15.****      ****Prepayments, Etc. ofIndebtedness**. Prepay,redeem, purchase, defease or otherwise satisfy prior to the scheduled maturitythereof in any manner or make any payment in violation of any subordinationterms of, (a) any Subordinated Debt or (b) senior unsecured Indebtedness setforth in Section 7.03(j); provided that nothing in this Sectionshall prohibit Holdings and its Subsidiaries from (i) converting suchIndebtedness to Equity Interests or (ii) prepaying such Indebtedness in fullwith proceeds received from a refinancing of such Indebtedness; providedthat (A) the amount of such Indebtedness is not increased at the time of suchrefinancing except by an amount equal to a reasonable premium or otherreasonable amount paid, and fees and expenses reasonably incurred, inconnection with such refinancing and by an amount equal to any existingcommitments unutilized thereunder, (B) the terms relating to principal amount,amortization, maturity, collateral (if any) and subordination (if any), andother material terms taken as a whole, of any such refinancing, and of anyagreement entered into and of any instrument issued in connection therewith,are no less favorable in any material respect to the Loan Parties or theLenders than the terms of any agreement or instrument governing theIndebtedness being refinanced and the interest rate applicable to any suchrefinancing does not exceed the then applicable market interest rate and (C)such refinancing shall be on terms and conditions reasonably satisfactory tothe Administrative Agent  (including,without limitation, satisfactory evidence of pro forma compliance with allfinancial covenants contained in Section 7.11 after giving effect tosuch refinancing of Indebtedness under this clause (ii)).

 

**7.16.****      ****Sales and Leasebacks.**Enter into any arrangement with any Personproviding for the leasing by any Loan Party of real or personal property thathas been or is to be sold or transferred by such Loan Party to such Person orto any other Person to whom funds have been or are to be advanced by suchPerson on the security of such property or rental obligations of such LoanParty, except for the sale and leaseback of trucks and equipment for immaterialamounts in the ordinary course of business.

 

**7.17.****      ****Swap Contracts.**Enter into any Swap Contract, except (a) SwapContracts entered into to hedge or mitigate risks to which the Borrower or anySubsidiary has actual exposure (other than those in respect of EquityInterests) and (b) Swap Contracts entered into in order to effectively cap,collar or exchange interest rates (from fixed to floating rates, from onefloating rate to another floating rate or otherwise) with respect to anyinterest-bearing liability or investment of the Borrower or any Subsidiary.

 

**7.18.****      ****Certain Agreements**. Consent to, or otherwise enter into orpermit, any amendment, supplement or other modification of any documentgoverning Subordinated Debt or the senior unsecured Indebtedness set forth in Section7.03(j) without the prior written consent of the Administrative Agent.

 

71

----

 

**7.19.****      ****Holdings**. Holdings shall not directly or indirectly(i) conduct, transact or otherwise engage in, or commit to conduct, transact orotherwise engage in, any business or operations other than those incidental toits ownership of the Equity Interests of the Borrower and in connection withemployment contracts entered into with officers of Holdings and itsSubsidiaries, or (ii) incur, create, assume or suffer to exist any Indebtednessor other liabilities or financial obligations, except (w) obligations inrespect of surety bonds referred to in Section 7.01(q), (x)nonconsensual obligations imposed by operation of law, (y) Indebtedness,liabilities and obligations pursuant to the Loan Documents to which it is aparty, agreements entered into in connection with or related to PermittedAcquisitions and issuances of Equity Interests, agreements entered into withdirectors and officers of Holdings and corporate overhead expenses and (z)obligations with respect to its Equity Interests.

 

**ARTICLE VIII.****EVENTS OF DEFAULT AND REMEDIES**

 

**8.01.****      ****Events of Default**. Any of the following shall constitute anEvent of Default:

 

(a)           Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and asrequired to be paid herein, any amount of principal of any Loan or any L/CObligation, or (ii) within five days after the same becomes due, any intereston any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) withinfive days after the same becomes due, any other amount payable hereunder or underany other Loan Document; or

 

(b)           Specific Covenants. The Borrower or any other Loan Party failsto perform or observe (a) any term, covenant or agreement contained in any of(i) Section 6.05(a), 6.10, 6.11 or 6.12 or ArticleVII (excluding 7.19), or (ii) Section 6.01, 6.02,  or 6.03 and such failure continues for15 days after the earlier of (A) the date on which any Responsible Officer ofthe Borrower knows or should have known of such failure, and (B) notice thereofto the Borrower and Holdings by the Administrative Agent or the RequiredLenders; or

 

(c)           Other Defaults. Any Loan Party fails to perform or observeany other covenant or agreement (not specified in subsection (a) or (b) above)contained in any Loan Document on its part to be performed or observed and suchfailure continues for 30 days after the earlier of (i) the date on which anyResponsible Officer of the Borrower knows of such failure, and (ii) noticethereof to the Borrower and Holdings by the Administrative Agent or theRequired Lenders; or

 

(d)           Representations and Warranties. Any representation, warranty orcertification made by or on behalf of the Borrower or any other Loan Partyherein, in any other Loan Document, or in any document delivered pursuant tothe terms of this Agreement shall be materially incorrect or misleading whenmade or deemed made; or

 

(e)           Cross-Default. (i) Any Loan Party or any Subsidiarythereof (A) fails to make any payment when due (whether by scheduled maturity,required prepayment, acceleration, demand, or otherwise) in respect of anyIndebtedness or Guarantee (other than Indebtedness hereunder and Indebtednessunder Swap Contracts) having an aggregate principal amount (including undrawncommitted or available amounts and including amounts owing to all creditorsunder any combined or syndicated credit arrangement) of more than the ThresholdAmount, or (B) fails to observe or perform any other agreement or conditionrelating to any such Indebtedness or Guarantee or contained in any instrumentor agreement evidencing, securing or relating thereto, or any other eventoccurs, the effect of which default or other event is to cause, or to permitthe holder or holders of such Indebtedness or the beneficiary or beneficiariesof such Guarantee (or a trustee or agent on behalf of such holder or holders or

 

72

----

 

beneficiaryor beneficiaries) to cause, with the giving of notice if required, suchIndebtedness to be demanded or to become due or to be repurchased, prepaid,defeased or redeemed (automatically or otherwise), or an offer to repurchase,prepay, defease or redeem such Indebtedness to be made, prior to its statedmaturity, or such Guarantee to become payable or cash collateral in respectthereof to be demanded; or (ii) there occurs under any Swap Contract an EarlyTermination Date (as defined in such Swap Contract) resulting from (A) anyevent of default under such Swap Contract as to which any Loan Party or anySubsidiary thereof is the Defaulting Party (as defined in such Swap Contract)or (B) any Termination Event (as so defined) under such Swap Contract as towhich any Loan Party or any Subsidiary thereof is an Affected Party (as sodefined) and, in either event, (x) the Swap Termination Value owed by such LoanParty or such Subsidiary as a result thereof is greater than the ThresholdAmount and (y) such Loan Party does not pay in full such Swap Termination Valuewithin fifteen (15) days after it becomes due and payable; or

 

(f)            Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary thereof(other than an Immaterial Subsidiary) institutes or consents to the institutionof any proceeding under any Debtor Relief Law, or makes an assignment for thebenefit of creditors; or applies for or consents to the appointment of anyreceiver, trustee, custodian, conservator, liquidator, rehabilitator or similarofficer for it or for all or any material part of its property; or anyreceiver, trustee, custodian, conservator, liquidator, rehabilitator or similarofficer is appointed without the application or consent of such Person and theappointment continues undischarged or unstayed for 60 calendar days; or anyproceeding under any Debtor Relief Law relating to any such Person or to all orany material part of its property is instituted without the consent of suchPerson and continues undismissed or unstayed for 60 calendar days, or an orderfor relief is entered in any such proceeding; or

 

(g)           Inability to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiarythereof (other than an Immaterial Subsidiary) becomes unable or admits inwriting its inability or fails generally to pay its debts as they become due,or (ii) any writ or warrant of attachment or execution or similar process isissued or levied against all or any material part of the property of any suchPerson and is not released, vacated or fully bonded within 30 days after itsissue or levy; or

 

(h)           Judgments. There is entered against any Loan Party or any Subsidiary thereof(other than an Immaterial Subsidiary) (i) one or more final judgments or ordersfor the payment of money in an aggregate amount (as to all such judgments andorders) exceeding the Threshold Amount (to the extent not covered byindependent third-party insurance as to which the insurer does not disputecoverage).

 

(i)            ERISA. (i) An ERISA Event occurs with respect to a Pension Plan orMultiemployer Plan which has resulted or could reasonably be expected to resultin liability of the Borrower under Title IV of ERISA to the Pension Plan,Multiemployer Plan or the PBGC in an aggregate amount in excess of theThreshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay whendue, after the expiration of any applicable grace period, any installmentpayment with respect to its withdrawal liability under Section 4201 of ERISAunder a Multiemployer Plan in an aggregate amount in excess of the ThresholdAmount; or

 

(j)            Invalidity of Loan Documents. Any provision of any Loan Document, at anytime after its execution and delivery and for any reason (other than (i) asexpressly permitted hereunder or thereunder, (ii) as a result of thesatisfaction in full of all the Obligations or (iii) as a result of the SunesysPledge being voided by the New Jersey Board of Public Utilities) ceases to bein full force and effect with respect to any Loan Party; or any Loan Partycontests in any manner the validity or enforceability of any provision of anyLoan Document; or any Loan Party denies that it has any or further liability orobligation 

 

73

----

 

underany provision of any Loan Document, or purports to revoke, terminate or rescindany provision of any Loan Document; or

 

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

 

(l)            Collateral Documents. Any Collateral Document after deliverythereof pursuant to Section 4.01 or 6.12 shall for anyreason (other than (i) pursuant to the terms thereof or (ii) as a result of theSunesys Pledge being voided by the New Jersey Board of Public Utilities) ceaseto create a valid and perfected first priority Lien (subject to Liens permittedby Section 7.01) on the Collateral purported to be covered thereby; or

 

(m)          (i)  The subordination provisionsof the documents evidencing or governing any Subordinated Debt (the “SubordinatedProvisions”) shall, in whole or in part, terminate, cease to be effectiveor cease to be legally valid, binding and enforceable against any holder of theapplicable Subordinated Debt; or (ii) the Borrower or any other Loan Partyshall, directly or indirectly, disavow or contest in any manner (A) theeffectiveness, validity or enforceability of any of the SubordinationProvisions, (B) that the Subordination Provisions exist for the benefit of theAdministrative Agent, the Lenders and the L/C Issuer or (C) that all paymentsof principal of or premium and interest on the applicable Subordinated Debt, orrealized from the liquidation of any property of any Loan Party, shall besubject to any of the Subordination Provisions.

 

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

 

(a)           declare the commitment of each Lender to make Loans and any obligationof the L/C Issuer to make L/C Credit Extensions to be terminated, whereuponsuch commitments and obligation shall be terminated;

 

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

 

(c)           require that the Borrower Cash Collateralize the L/C Obligations (in anamount equal to the then Outstanding Amount thereof); and

 

(d)           exercise on behalf of itself, the Lenders and the L/C Issuer all rightsand remedies available to it, the Lenders and the L/C Issuer under the LoanDocuments;

 

provided, however,that upon the occurrence of an actual or deemed entry of an order for reliefwith respect to the Borrower under the Bankruptcy Code of the United States,the obligation of each Lender to make Loans and any obligation of the L/CIssuer to make L/C Credit Extensions shall automatically terminate, the unpaidprincipal amount of all outstanding Loans and all interest and other amounts asaforesaid shall automatically become due and payable, and the obligation of theBorrower to Cash Collateralize the L/C Obligations as aforesaid shallautomatically become effective, in each case without further act of theAdministrative Agent or any Lender.

 

**8.03.****      ****Application of Funds**. After the exercise of remedies provided forin Section 8.02 (or after the Loans have automatically becomeimmediately due and payable and the L/C Obligations have automatically beenrequired to be Cash Collateralized as set forth in the proviso to Section8.02), any 

 

74

----

 

amountsreceived on account of the Obligations shall be applied by the AdministrativeAgent in the following order:

 

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

 

Second, topayment of that portion of the Obligations constituting fees, indemnities andother amounts (other than principal, interest and Letter of Credit Fees)payable to the Lenders and the L/C Issuer (including fees, charges anddisbursements of counsel to the respective Lenders and the L/C Issuer(including fees and time charges for attorneys who may be employees of anyLender or the L/C Issuer) and amounts payable under Article III),ratably among them in proportion to the respective amounts described in thisclause Second payable to them;

 

Third, topayment of that portion of the Obligations constituting accrued and unpaidLetter of Credit Fees and interest on the Loans, L/C Borrowings and otherObligations, ratably among the Lenders and the L/C Issuer in proportion to therespective amounts described in this clause Third payable to them;

 

Fourth, topayment of that portion of the Obligations constituting unpaid principal of theLoans, L/C Borrowings and amounts owing under Secured Hedge Agreements andSecured Cash Management Agreements and to the Administrative Agent for theaccount of the L/C Issuer, to Cash Collateralize that portion of L/CObligations comprised of the aggregate undrawn amount of Letters of Credit,ratably among the Lenders, the L/C Issuer, the Hedge Banks and the CashManagement Banks in proportion to the respective amounts described in thisclause Fourth held by them; and

 

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

 

Subject to Section 2.03(c), amounts used to Cash Collateralizethe aggregate undrawn amount of Letters of Credit pursuant to clause Fourthabove shall be applied to satisfy drawings under such Letters of Credit as theyoccur. If any amount remains on deposit as Cash Collateral after all Letters ofCredit have either been fully drawn or expired, such remaining amount shall beapplied to the other Obligations, if any, in the order set forth above.

 

**ARTICLE IX.****ADMINISTRATIVE AGENT**

 

**9.01.****      ****Appointment and Authority**. (a) Each of the Lenders and the L/C Issuerhereby irrevocably appoints Bank of America to act on its behalf as theAdministrative Agent hereunder and under the other Loan Documents andauthorizes the Administrative Agent to take such actions on its behalf and toexercise such powers as are delegated to the Administrative Agent by the termshereof or thereof, together with such actions and powers as are reasonablyincidental thereto. The provisions of this Article are solely for the benefitof the Administrative Agent, the Lenders and the L/C Issuer, and neither theBorrower nor any other Loan Party shall have rights as a third partybeneficiary of any of such provisions.

 

(b)           The Administrative Agent shall also act as the “collateral agent”under the Loan Documents, and each of the Lenders (in its capacities as aLender, Swing Line Lender (if applicable), potential Hedge Bank and potentialCash Management Bank) and the L/C Issuer hereby irrevocably appoints andauthorizes the Administrative Agent to act as the agent of such Lender and theL/C Issuer for purposes of acquiring, holding and enforcing any and all Lienson Collateral granted by any of the Loan 

 

75

----

 

Partiesto secure any of the Obligations, together with such powers and discretion asare reasonably incidental thereto. In this connection, the AdministrativeAgent, as “collateral agent” and any co-agents, sub-agents andattorneys-in-fact appointed by the Administrative Agent pursuant to Section9.05 for purposes of holding or enforcing any Lien on the Collateral (orany portion thereof) granted under the Collateral Documents, or for exercisingany rights and remedies thereunder at the direction of the AdministrativeAgent), shall be entitled to the benefits of all provisions of this ArticleIX and Article XI (including Section 11.04(c), as thoughsuch co-agents, sub-agents and attorneys-in-fact were the “collateral agent”under the Loan Documents) as if set forth in full herein with respect thereto.

 

(c)           The Administrative Agent is authorized and directed to execute anddeliver the Intercreditor Agreements on behalf of the Secured Parties and toact in accordance with the provisions thereof. Each of the Secured Partiesagrees to be bound by the provisions thereof.

 

(d)           The Administrative Agent is authorized and directed to grant to theBorrower and the other Loan Parties a limited power of attorney, for theadministration of Collateral, the ownership of or title to, which is evidencedby a motor vehicle or other certificate of title.

 

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

 

**9.03.****      ****Exculpatory Provisions**. The Administrative Agent shall not have anyduties or obligations except those expressly set forth herein and in the otherLoan Documents. Without limiting the generality of the foregoing, theAdministrative Agent:

 

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

 

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

 

(c)           shall not, except as expressly set forth herein and in the other LoanDocuments, have any duty to disclose, and shall not be liable for the failureto disclose, any information relating to the Borrower or any of its Affiliatesthat is communicated to or obtained by the Person serving as the AdministrativeAgent or any of its Affiliates in any capacity.

 

The Administrative Agent shall not be liable for any action taken ornot taken by it (i) with the consent or at the request of the Required Lenders(or such other number or percentage of the Lenders as shall be necessary, or asthe Administrative Agent shall believe in good faith shall be necessary, underthe circumstances as provided in Sections 11.01 and 8.02) or (ii)in the absence of its own gross negligence or 

 

76

----

 

willfulmisconduct. The Administrative Agent shall be deemed not to have knowledge ofany Default unless and until notice describing such Default is given to theAdministrative Agent by Holdings, the Borrower, a Lender or the L/C Issuer.

 

The Administrative Agent shall not be responsible for or have any dutyto ascertain or inquire into (i) any statement, warranty or representation madein or in connection with this Agreement or any other Loan Document, (ii) thecontents of any certificate, report or other document delivered hereunder orthereunder or in connection herewith or therewith, (iii) the performanceor observance of any of the covenants, agreements or other terms or conditionsset forth herein or therein or the occurrence of any Default, (iv) thevalidity, enforceability, effectiveness or genuineness of this Agreement, anyother Loan Document or any other agreement, instrument or document, or thecreation, perfection or priority of any Lien purported to be created by theCollateral Documents, (v) the value or the sufficiency of any Collateral, or(v)the satisfaction of any condition set forth in Article IV or elsewhereherein, other than to confirm receipt of items expressly required to bedelivered to the Administrative Agent.

 

**9.04.****      ****Reliance by AdministrativeAgent**. The AdministrativeAgent shall be entitled to rely upon, and shall not incur any liability forrelying upon, any notice, request, certificate, consent, statement, instrument,document or other writing (including any electronic message, Internet orintranet website posting or other distribution) believed by it to be genuineand to have been signed, sent or otherwise authenticated by the proper Person.The Administrative Agent also may rely upon any statement made to it orally orby telephone and believed by it to have been made by the proper Person, andshall not incur any liability for relying thereon. In determining compliancewith any condition hereunder to the making of a Loan, or the issuance of aLetter of Credit, that by its terms must be fulfilled to the satisfaction of aLender or the L/C Issuer, the Administrative Agent may presume that such conditionis satisfactory to such Lender or the L/C Issuer unless the AdministrativeAgent shall have received notice to the contrary from such Lender or the L/CIssuer prior to the making of such Loan or the issuance of such Letter ofCredit. The Administrative Agent may consult with legal counsel (who may becounsel for the Borrower), independent accountants and other experts selectedby it, and shall not be liable for any action taken or not taken by it inaccordance with the advice of any such counsel, accountants or experts.

 

**9.05.****      ****Delegation of Duties**. The Administrative Agent may perform anyand all of its duties and exercise its rights and powers hereunder or under anyother Loan Document by or through any one or more sub-agents appointed by theAdministrative Agent. The Administrative Agent and any such sub-agent mayperform any and all of its duties and exercise its rights and powers by orthrough their respective Related Parties. The exculpatory provisions of thisArticle shall apply to any such sub-agent and to the Related Parties of theAdministrative Agent and any such sub-agent, and shall apply to theirrespective activities in connection with the syndication of the creditfacilities provided for herein as well as activities as Administrative Agent.

 

**9.06.****      ****Resignation ofAdministrative Agent**. TheAdministrative Agent may at any time give notice of its resignation to theLenders, the L/C Issuer and the Borrower. Upon receipt of any such notice ofresignation, the Required Lenders shall have the right, with the approval ofthe Borrower if no Default exists, to appoint a successor, which shall be abank with an office in the United States, or an Affiliate of any such bank withan office in the United States. If no such successor shall have been so appointedby the Required Lenders and shall have accepted such appointment within30 days after the retiring Administrative Agent gives notice of itsresignation, then the retiring Administrative Agent may on behalf of theLenders and the L/C Issuer, appoint a successor Administrative Agent meetingthe qualifications set forth above; provided that if the AdministrativeAgent shall notify the Borrower and the Lenders that no qualifying Person hasaccepted such appointment, then such resignation shall nonetheless becomeeffective in accordance with such notice and (1) the retiringAdministrative Agent shall be discharged 

 

77

----

 

fromits duties and obligations hereunder and under the other Loan Documents (exceptthat in the case of any collateral security held by the Administrative Agent onbehalf of the Lenders or the L/C Issuer under any of the Loan Documents, theretiring Administrative Agent shall continue to hold such collateral securityuntil such time as a successor Administrative Agent is appointed) and(2) all payments, communications and determinations provided to be madeby, to or through the Administrative Agent shall instead be made by or to eachLender and the L/C Issuer directly, until such time as the Required Lendersappoint a successor Administrative Agent as provided for above in this Section.Upon the acceptance of a successor’s appointment as Administrative Agenthereunder, such successor shall succeed to and become vested with all of therights, powers, privileges and duties of the retiring (or retired)Administrative Agent, and the retiring Administrative Agent shall be dischargedfrom all of its duties and obligations hereunder or under the other LoanDocuments (if not already discharged therefrom as provided above in thisSection). The fees payable by the Borrower to a successor Administrative Agentshall be the same as those payable to its predecessor unless otherwise agreedbetween the Borrower and such successor. After the retiring Administrative Agent’sresignation hereunder and under the other Loan Documents, the provisions ofthis Article and Section 11.04 shall continue in effect for thebenefit of such retiring Administrative Agent, its sub-agents and theirrespective Related Parties in respect of any actions taken or omitted to betaken by any of them while the retiring Administrative Agent was acting asAdministrative Agent.

 

Any resignation by Bank of America as Administrative Agent pursuant tothis Section shall also constitute its resignation as L/C Issuer and Swing LineLender. Upon the acceptance of a successor’s appointment as AdministrativeAgent hereunder, (a) such successor shall succeed to and become vested with allof the rights, powers, privileges and duties of the retiring L/C Issuer andSwing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall bedischarged from all of their respective duties and obligations hereunder orunder the other Loan Documents, and (c) the successor L/C Issuer shall issueletters of credit in substitution for the Letters of Credit, if any,outstanding at the time of such succession or make other arrangementssatisfactory to the retiring L/C Issuer to effectively assume the obligationsof the retiring L/C Issuer with respect to such Letters of Credit.

 

**9.07.****      ****Non-Reliance onAdministrative Agent and Other Lenders**. Each Lender and the L/C Issuer acknowledges that it has,independently and without reliance upon the Administrative Agent or any otherLender or any of their Related Parties and based on such documents andinformation as it has deemed appropriate, made its own credit analysis anddecision to enter into this Agreement. Each Lender and the L/C Issuer alsoacknowledges that it will, independently and without reliance upon theAdministrative Agent or any other Lender or any of their Related Parties andbased on such documents and information as it shall from time to time deemappropriate, continue to make its own decisions in taking or not taking actionunder or based upon this Agreement, any other Loan Document or any relatedagreement or any document furnished hereunder or thereunder.

 

**9.08.****      ****No Other Duties, Etc**. Anything herein to the contrarynotwithstanding, none of the Bookrunners, Arrangers, Syndication Agents orDocumentation Agents listed on the cover page hereof shall have any powers,duties or responsibilities under this Agreement or any of the other LoanDocuments, except in its capacity, as applicable, as the Administrative Agent,a Lender or the L/C Issuer hereunder.

 

**9.09.****      ****Administrative Agent MayFile Proofs of Claim**. Incase of the pendency of any proceeding under any Debtor Relief Law or any otherjudicial proceeding relative to any Loan Party, the Administrative Agent(irrespective of whether the principal of any Loan or L/C Obligation shall thenbe due and payable as herein expressed or by declaration or otherwise andirrespective of whether the 

 

78

----

 

AdministrativeAgent shall have made any demand on the Borrower) shall be entitled andempowered, by intervention in such proceeding or otherwise

 

(a)           to file and prove a claim for the whole amount of the principal andinterest owing and unpaid in respect of the Loans, L/C Obligations and allother Obligations that are owing and unpaid and to file such other documents asmay be necessary or advisable in order to have the claims of the Lenders, theL/C Issuer and the Administrative Agent (including any claim for the reasonablecompensation, expenses, disbursements and advances of the Lenders, the L/CIssuer and the Administrative Agent and their respective agents and counsel andall other amounts due the Lenders, the L/C Issuer and the Administrative Agentunder Sections 2.03(i) and (j), 2.09 and 11.04)allowed in such judicial proceeding; and

 

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

 

and any custodian, receiver, assignee, trustee, liquidator,sequestrator or other similar official in any such judicial proceeding ishereby authorized by each Lender and the L/C Issuer to make such payments tothe Administrative Agent and, in the event that the Administrative Agent shallconsent to the making of such payments directly to the Lenders and the L/CIssuer, to pay to the Administrative Agent any amount due for the reasonablecompensation, expenses, disbursements and advances of the Administrative Agentand its agents and counsel, and any other amounts due the Administrative Agentunder Sections 2.09 and 11.04.

 

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

 

**9.10.****      ****Collateral and GuarantyMatters**. The Lenders and theL/C Issuer irrevocably authorize the Administrative Agent, at its option and inits discretion**,**

 

(a)           to release any Lien on any property granted to or held by theAdministrative Agent under any Loan Document (i) upon termination of theAggregate Commitments and payment in full of all Obligations (other thancontingent indemnification obligations) and the expiration or termination ofall Letters of Credit, (ii) that is sold or to be sold as part of or inconnection with any sale permitted hereunder or under any other Loan Document,or (iii) if approved, authorized or ratified in writing in accordance with Section11.01;

 

(b)           to release the Collateral granted pursuant to the Collateral Assignmentof Intercompany Notes upon Sunesys, Inc. and Sunesys of Virginia, Inc. (a)obtaining the necessary approvals and/or consents pursuant to Section 6.14and (b) becoming a Guarantor, granting a security interest to theAdministrative Agent in substantially all of its assets and otherwise executingand/or delivering all documents, certificates, opinions and other itemsrequired under Section 6.12;

 

(c)           to subordinate any Lien on any property granted to or held by theAdministrative Agent under any Loan Document to the holder of any Lien on suchproperty that is permitted by Section 7.01(h); and

 

(d)           to release any Guarantor from its obligations under the Guaranty ifsuch Person ceases to be a Subsidiary as a result of a transaction permittedhereunder.

 

79

----

 

Upon request by the Administrative Agent at any time, the RequiredLenders will confirm in writing the Administrative Agent’s authority to releaseor subordinate its interest in particular types or items of property, or torelease any Guarantor from its obligations under the Guaranty pursuant to this Section9.10. In each case as specified in this Section 9.10, theAdministrative Agent will, at the Borrower’s expense, execute and deliver tothe applicable Loan Party such documents as such Loan Party may reasonablyrequest to evidence the release of such item of Collateral from the assignmentand security interest granted under the Collateral Documents or to subordinateits interest in such item, or to release such Guarantor from its obligationsunder the Guaranty, in each case in accordance with the terms of the LoanDocuments and this Section 9.10.

 

**ARTICLE X.****CONTINUING GUARANTY**

 

**10.01.****    ****Guaranty.**Holdings hereby absolutely andunconditionally guarantees, as a guaranty of payment and performance and notmerely as a guaranty of collection, prompt payment when due, whether at statedmaturity, by required prepayment, upon acceleration, demand or otherwise, andat all times thereafter, of any and all of the Obligations, whether forprincipal, interest, premiums, fees, indemnities, damages, costs, expenses orotherwise, of the Borrower to the Secured Parties, arising hereunder and underthe other Loan Documents (including all renewals, extensions, amendments,refinancings and other modifications thereof and all costs, attorneys’ fees andexpenses incurred by the Secured Parties in connection with the collection orenforcement thereof). The Administrative Agent’s books and records showing theamount of the Obligations shall be admissible in evidence in any action orproceeding, and shall be binding upon Holdings, and conclusive for the purposeof establishing the amount of the Obligations. This Guaranty shall not beaffected by the genuineness, validity, regularity or enforceability of theObligations or any instrument or agreement evidencing any Obligations, or bythe existence, validity, enforceability, perfection, non-perfection or extentof any collateral therefor, or by any fact or circumstance relating to theObligations which might otherwise constitute a defense to the obligations ofHoldings under this Guaranty, and Holdings hereby irrevocably waives anydefenses it may now have or hereafter acquire in any way relating to any or allof the foregoing.

 

Notwithstanding any provision to the contrary contained herein or inany other of the Loan Documents or Swap Contracts, the obligations of Holdingsunder this Article X and the other Loan Documents shall be limited to anaggregate amount equal to the largest amount that would not render suchobligations subject to avoidance under the Debtor Relief Laws or any comparableprovisions of any applicable state law.

 

**10.02.****    ****Rights of Lenders**. Holdings consents and agrees that theSecured Parties may, at any time and from time to time, without notice to ordemand of Holdings, and without affecting the enforceability or continuingeffectiveness hereof:  (a) amend, extend,renew, compromise, discharge, accelerate or otherwise agree to change the timefor payment or the terms of the Obligations or any part thereof; (b) take, hold,exchange, enforce, waive, release, fail to perfect, sell, or otherwise disposeof any security for the payment of this Guaranty or any Obligations; (c) applysuch security and direct the order or manner of sale thereof as theAdministrative Agent, the L/C Issuer and the Lenders in their sole discretionmay determine; and (d) release or substitute one or more of any endorsers orother guarantors of any of the Obligations. Without limiting the generality ofthe foregoing, Holdings consents to the taking of, or failure to take, anyaction which might in any manner or to any extent vary the risks of Holdingsunder this Guaranty or which, but for this provision, might operate as adischarge of Holdings.

 

**10.03.****    ****Certain Waivers***.*Holdings waives (a) any defense arising byreason of any disability or other defense of the Borrower or any otherguarantor, or the cessation from any cause whatsoever 

 

80

----

 

(includingany act or omission of any Secured Party) of the liability of the Borrower; (b)any defense based on any claim that Holdings’ obligations exceed or are moreburdensome than those of the Borrower; (c) the benefit of any statute oflimitations affecting Holdings’ liability hereunder; (d) except as provided in Section10.05, any right to proceed against the Borrower, proceed against orexhaust any security for the Obligations, or pursue any other remedy in thepower of any Secured Party whatsoever; (e) any benefit of and any right toparticipate in any security now or hereafter held by any Secured Party; and (f)to the fullest extent permitted by law, any and all other defenses or benefitsthat may be derived from or afforded by applicable law limiting the liabilityof or exonerating guarantors or sureties. Holdings expressly waives all setoffsand counterclaims and all presentments, demands for payment or performance,notices of nonpayment or nonperformance, protests, notices of protest, noticesof dishonor and all other notices or demands of any kind or nature whatsoeverwith respect to the Obligations, and all notices of acceptance of this Guarantyor of the existence, creation or incurrence of new or additional Obligations.As provided below, this Guaranty shall be governed by, and construed inaccordance with, the laws of the Commonwealth of Pennsylvania.

 

**10.04.****    ****Obligations Independent**. The obligations of Holdings hereunder arethose of primary obligor, and not merely as surety, and are independent of theObligations and the obligations of any other guarantor, and a separate actionmay be brought against Holdings to enforce this Guaranty whether or not theBorrower or any other person or entity is joined as a party.

 

**10.05.****    ****Subrogation.**Holdings shall not exercise any right ofsubrogation, contribution, indemnity, reimbursement or similar rights withrespect to any payments it makes under this Guaranty until all of theObligations and any amounts payable under this Guaranty have been indefeasiblypaid and performed in full and the Commitments are terminated. If any amountsare paid to Holdings in violation of the foregoing limitation, then suchamounts shall be held in trust for the benefit of the Secured Parties and shallforthwith be paid to the Secured Parties to reduce the amount of theObligations, whether matured or unmatured.

 

**10.06.****    ****Termination; Reinstatement**. This Guaranty is a continuing andirrevocable guaranty of all Obligations now or hereafter existing and shallremain in full force and effect until all Obligations and any other amountspayable under this Guaranty are indefeasibly paid in full in cash and theCommitments with respect to the Obligations are terminated. Notwithstanding theforegoing, this Guaranty shall continue in full force and effect or be revived,as the case may be, if any payment by or on behalf of the Borrower or Holdingsis made, or any of the Secured Parties exercises its right of setoff, inrespect of the Obligations and such payment or the proceeds of such setoff orany part thereof is subsequently invalidated, declared to be fraudulent orpreferential, set aside or required (including pursuant to any settlemententered into by any of the Secured Parties in their discretion) to be repaid toa trustee, receiver or any other party, in connection with any proceeding underany Debtor Relief Laws or otherwise, all as if such payment had not been madeor such setoff had not occurred and whether or not the Secured Parties are inpossession of or have released this Guaranty and regardless of any priorrevocation, rescission, termination or reduction. The obligations of Holdingsunder this paragraph shall survive termination of this Guaranty.

 

**10.07.****    ****Subordination.**Holdings hereby subordinates the payment ofall obligations and indebtedness of the Borrower owing to Holdings, whether nowexisting or hereafter arising, including but not limited to any obligation ofthe Borrower to Holdings as subrogee of the Secured Parties or resulting fromHoldings’ performance under this Guaranty, to the indefeasible payment in fullin cash of all Obligations. If the Secured Parties so request, any suchobligation or indebtedness of the Borrower to Holdings shall be enforced andperformance received by Holdings as trustee for the Secured Parties and 

 

81

----

 

theproceeds thereof shall be paid over to the Secured Parties on account of theObligations, but without reducing or affecting in any manner the liability ofHoldings under this Guaranty.

 

**10.08.****    ****Stay of Acceleration**. If acceleration of the time for payment ofany of the Obligations is stayed, in connection with any case commenced by oragainst Holdings or the Borrower under any Debtor Relief Laws, or otherwise,all such amounts shall nonetheless be payable by Holdings immediately upondemand by the Secured Parties.

 

**10.09.****    ****Condition of Borrower**. Holdings acknowledges and agrees that ithas the sole responsibility for, and has adequate means of, obtaining from theBorrower and any other guarantor such information concerning the financialcondition, business and operations of the Borrower and any such other guarantoras Holdings requires, and that none of the Secured Parties has any duty, andHoldings is not relying on the Secured Parties at any time, to disclose toHoldings any information relating to the business, operations or financialcondition of the Borrower or any other guarantor (Holdings waiving any duty onthe part of the Secured Parties to disclose such information and any defenserelating to the failure to provide the same).

 

**ARTICLE XI.****MISCELLANEOUS**

 

**11.01.****    ****Amendments, Etc**. No amendment or waiver of any provision ofthis Agreement or any other Loan Document, and no consent to any departure bythe Borrower or any other Loan Party therefrom, shall be effective unless inwriting and signed by the Required Lenders, Holdings and the Borrower or theapplicable Loan Party, as the case may be, and acknowledged by theAdministrative Agent, and each such waiver or consent shall be effective onlyin the specific instance and for the specific purpose for which given; provided,however, that no such amendment, waiver or consent shall:

 

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

 

(b)           extend or increase the Commitment of any Lender (or reinstate anyCommitment terminated pursuant to Section 8.02) without the writtenconsent of such Lender;

 

(c)           postpone any date fixed by this Agreement or any other Loan Documentfor any payment of principal, interest, fees or other amounts due to theLenders (or any of them) hereunder or under any other Loan Document without thewritten consent of each Lender directly affected thereby;

 

(d)           reduce the principal of, or the rate of interest specified herein on,any Loan or L/C Borrowing, or (subject to clause (v) of the second proviso tothis Section 11.01) any fees or other amounts payable hereunder or underany other Loan Document****withoutthe written consent of each Lender directly affected thereby; provided, however,that only the consent of the Required Lenders shall be necessary (i) to amendthe definition of “Default Rate” or to waive any obligation of the Borrower topay interest or Letter of Credit Fees at the Default Rate or (ii) to amend anyfinancial covenant hereunder (or any defined term used therein) even if theeffect of such amendment would be to reduce the rate of interest on any Loan orL/C Borrowing or to reduce any fee payable hereunder;

 

(e)           change Section 2.13 or Section 8.03 in a manner thatwould alter the pro rata sharing of payments required thereby without thewritten consent of each Lender;

 

(f)            change any provision of this Section or thedefinition of “Required Lenders”, “Required Revolving Lenders” or any otherprovision hereof specifying the number or percentage of Lenders

 

82

----

 

requiredto amend, waive or otherwise modify any rights hereunder or make anydetermination or grant any consent hereunder without the written consent ofeach Lender;

 

(g)           release all or substantially all of the value of the Guaranty withoutthe written consent of each Lender;

 

(h)           release all or substantially all of the Collateral in any transactionor series of related transactions, without the written consent of each Lender;or

 

(i)            amend the definition of “AlternativeCurrency” without the written consent of each Lender;

 

and, providedfurther, that (i) no amendment, waiver orconsent shall, unless in writing and signed by the L/C Issuer in addition tothe Lenders required above, affect the rights or duties of the L/C Issuer underthis Agreement or any Issuer Document relating to any Letter of Credit issuedor to be issued by it; (ii) no amendment, waiver or consent shall, unless inwriting and signed by the Swing Line Lender in addition to the Lenders requiredabove, affect the rights or duties of the Swing Line Lender under thisAgreement; (iii) no amendment, waiver or consent shall, unless in writing andsigned by the Administrative Agent in addition to the Lenders required above,affect the rights or duties of the Administrative Agent under this Agreement orany other Loan Document; (iv) Section 11.06(h) may not be amended,waived or otherwise modified without the consent of each Granting Lender all orany part of whose Loans are being funded by an SPC at the time of suchamendment, waiver or other modification; (v) the Fee Letter may be amended, orrights or privileges thereunder waived, in a writing executed only by theparties thereto and (vi) Sections 2.02, 2.03, 2.04, 2.05, 4.02 and thisclause (vi) may not be amended, waived or otherwise modified without theconsent of the Required Revolving Lenders. Notwithstanding anything to thecontrary herein, no Defaulting Lender shall have any right to approve ordisapprove any amendment, waiver or consent hereunder, except that theCommitment of such Lender may not be increased or extended without the consentof such Lender.

 

If any Lender does not consent to a proposed amendment, waiver, consentor release with respect to any Loan Document that requires the consent of eachLender and that has been approved by the Required Lenders, the Borrower mayreplace such non-consenting Lender in accordance with Section 11.13; providedthat such amendment, waiver, consent or release can be effected as a result ofthe assignment contemplated by such Section (together with all other such assignmentsrequired by the Borrower to be made pursuant to this paragraph).

 

**11.02.****    ****Notices; Effectiveness;Electronic Communication.**

 

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

 

(i)            if to Holdings, the Borrower, theAdministrative Agent, the L/C Issuer or the Swing Line Lender, to the address,telecopier number, electronic mail address or telephone number specified forsuch Person on Schedule 11.02; and

 

(ii)           if to any other Lender, to the address,telecopier number, electronic mail address or telephone number specified in itsAdministrative Questionnaire.

 

83

----

 

Notices sent by hand or overnight courier service, or mailed bycertified or registered mail, shall be deemed to have been given when received;notices sent by telecopier shall be deemed to have been given when sent (exceptthat, if not given during normal business hours for the recipient, shall bedeemed to have been given at the opening of business on the next business dayfor the recipient). Notices delivered through electronic communications to theextent provided in subsection (b) below, shall be effective as provided in suchsubsection (b).

 

(b)           Electronic Communications. Notices and other communications to theLenders and the L/C Issuer hereunder may be delivered or furnished byelectronic communication (including e-mail and Internet or intranet websites)pursuant to procedures approved by the Administrative Agent, providedthat the foregoing shall not apply to notices to any Lender or the L/C Issuerpursuant to Article II if such Lender or the L/C Issuer, as applicable,has notified the Administrative Agent that it is incapable of receiving noticesunder such Article by electronic communication. The Administrative Agent or theBorrower may, in its discretion, agree to accept notices and othercommunications to it hereunder by electronic communications pursuant toprocedures approved by it, provided that approval of such procedures maybe limited to particular notices or communications.

 

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

 

(c)           The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “ASAVAILABLE.”  THE AGENT PARTIES (ASDEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWERMATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FORERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND,EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESSFOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOMFROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTIONWITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall theAdministrative Agent or any of its Related Parties (collectively, the “AgentParties”) have any liability to Holdings, the Borrower, any Lender, the L/CIssuer or any other Person for losses, claims, damages, liabilities or expensesof any kind (whether in tort, contract or otherwise) arising out of theBorrower’s or the Administrative Agent’s transmission of Borrower Materialsthrough the Internet, except to the extent that such losses, claims, damages,liabilities or expenses are determined by a court of competent jurisdiction bya final and nonappealable judgment to have resulted from the gross negligenceor willful misconduct of such Agent Party; provided, however,that in no event shall any Agent Party have any liability to Holdings, theBorrower, any Lender, the L/C Issuer or any other Person for indirect, special,incidental, consequential or punitive damages (as opposed to direct or actualdamages).

 

(d)           Change of Address, Etc. Each of Holdings, the Borrower, theAdministrative Agent, the L/C Issuer and the Swing Line Lender may change itsaddress, telecopier or telephone number for notices and other communicationshereunder by notice to the other parties hereto. Each other Lender may changeits address, telecopier or telephone number for notices and othercommunications hereunder by notice to 

 

84

----

 

theBorrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender.In addition, each Lender agrees to notify the Administrative Agent from time totime to ensure that the Administrative Agent has on record (i) an effectiveaddress, contact name, telephone number, telecopier number and electronic mailaddress to which notices and other communications may be sent and (ii) accuratewire instructions for such Lender.

 

(e)           Reliance by Administrative Agent, L/C Issuerand Lenders. TheAdministrative Agent, the L/C Issuer and the Lenders shall be entitled to relyand act upon any notices (including telephonic Loan Notices and Swing Line LoanNotices) purportedly given by or on behalf of the Borrower even if (i) suchnotices were not made in a manner specified herein, were incomplete or were notpreceded or followed by any other form of notice specified herein, or (ii) theterms thereof, as understood by the recipient, varied from any confirmationthereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer,each Lender and the Related Parties of each of them from all losses, costs,expenses and liabilities resulting from the reliance by such Person on eachnotice purportedly given by or on behalf of the Borrower. All telephonicnotices to and other telephonic communications with the Administrative Agentmay be recorded by the Administrative Agent, and each of the parties heretohereby consents to such recording.

 

**11.03.****    ****No Waiver; CumulativeRemedies**. No failure by anyLender, the L/C Issuer or the Administrative Agent to exercise, and no delay byany such Person in exercising, any right, remedy, power or privilege hereunderor under any other Loan Document shall operate as a waiver thereof; nor shallany single or partial exercise of any right, remedy, power or privilegehereunder preclude any other or further exercise thereof or the exercise of anyother right, remedy, power or privilege. The rights, remedies, powers andprivileges herein provided, and provided under each other Loan Document, arecumulative and not exclusive of any rights, remedies, powers and privilegesprovided by law.

 

**11.04.****    ****Expenses; Indemnity; DamageWaiver.**

 

(a)           Costs and Expenses. The Borrower shall pay (i) allreasonable out-of-pocket expenses incurred by the Administrative Agent and itsAffiliates (including the reasonable fees, charges and disbursements of counselfor the Administrative Agent), in connection with the syndication of the creditfacilities provided for herein, the preparation, negotiation, execution,delivery and administration of this Agreement and the other Loan Documents orany amendments, modifications or waivers of the provisions hereof or thereof(whether or not the transactions contemplated hereby or thereby shall beconsummated), (ii) all reasonable out-of-pocket expenses incurred by theL/C Issuer in connection with the issuance, amendment, renewal or extension ofany Letter of Credit or any demand for payment thereunder, (iii) all costs andexpenses of lien searches, (iv) taxes, fees and other charges for filingfinancing statements and continuations, and other actions to perfect, protect,and continue the Administrative Agent’s Liens, (v) costs of appraisals,inspections, and verifications, including, without limitation, travel, lodging,and meals for inspections of the Collateral and the Borrower’s operations bythe Administrative Agent, subject to Section 6.10, (vi) costs andexpenses of preserving and protecting the Collateral, (vii) sums paid orincurred to pay any amount or take any action required of the Borrower underthe Loan Documents that the Borrower fails to pay or take and (viii) allout-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/CIssuer (including the fees, charges and disbursements of any counsel for theAdministrative Agent, any Lender or the L/C Issuer), and shall pay all fees andtime charges for attorneys who may be employees of the Administrative Agent,any Lender or the L/C Issuer, in connection with the enforcement or protectionof its rights (A) in connection with this Agreement and the other LoanDocuments, including its rights under this Section, (B) in connection withthe Loans made or Letters of Credit issued hereunder, including all suchout-of-pocket expenses incurred during any workout, 

 

85

----

 

restructuringor negotiations in respect of such Loans or Letters of Credit, or (C) inconnection with the sale or other realization upon the Collateral.

 

(b)           Indemnification by the Borrower. The Borrower shall indemnify theAdministrative Agent (and any sub-agent thereof), each Lender and the L/CIssuer, and each Related Party of any of the foregoing Persons (each suchPerson being called an “Indemnitee”) against, and hold each Indemniteeharmless from, any and all losses, claims, damages, liabilities and relatedexpenses (including the fees, charges and disbursements of any counsel for anyIndemnitee), and shall indemnify and hold harmless each Indemnitee from allfees and time charges and disbursements for attorneys who may be employees ofany Indemnitee, incurred by any Indemnitee or asserted against any Indemniteeby any third party or by the Borrower or any other Loan Party arising out of,in connection with, or as a result of (i) the execution or delivery ofthis Agreement, any other Loan Document or any agreement or instrumentcontemplated hereby or thereby, the performance by the parties hereto of theirrespective obligations hereunder or thereunder, the consummation of thetransactions contemplated hereby or thereby, or, in the case of theAdministrative Agent (and any sub-agent thereof) and its Related Parties only,the administration of this Agreement and the other Loan Documents,(ii) any Loan or Letter of Credit or the use or proposed use of theproceeds therefrom (including any refusal by the L/C Issuer to honor a demandfor payment under a Letter of Credit if the documents presented in connectionwith such demand do not strictly comply with the terms of such Letter ofCredit), (iii) any actual or alleged presence or release of HazardousMaterials on or from any property owned or operated by the Borrower or any ofits Subsidiaries, or any Environmental Liability related in any way to theBorrower or any of its Subsidiaries, or (iv) any actual or prospectiveclaim, litigation, investigation or proceeding relating to any of theforegoing, whether based on contract, tort or any other theory, whether broughtby a third party or by the Borrower or any other Loan Party, and regardless ofwhether any Indemnitee is a party thereto; provided that such indemnityshall not, as to any Indemnitee, be available to the extent that such losses,claims, damages, liabilities or related expenses (x) are determined by acourt of competent jurisdiction by final and nonappealable judgment to haveresulted from the gross negligence or willful misconduct of such Indemnitee or(y) result from a claim brought by the Borrower or any other Loan Party againstan Indemnitee for breach in bad faith of such Indemnitee’s obligationshereunder or under any other Loan Document, if the Borrower or such Loan Partyhas obtained a final and nonappealable judgment in its favor on such claim asdetermined by a court of competent jurisdiction. To the extent it is legallypermitted to do so, the applicable Indemnitee will provide the Borrower withnotice of any such investigation, litigation or proceeding described in clause(iv) above and, in the case of litigation, the opportunity to defend suchlitigation, provided that the Borrower shall not settle any such litigationwithout the applicable Indemnitee’s consent.

 

(c)           Reimbursement by Lenders. To the extent that the Borrower for anyreason fails to indefeasibly pay any amount required under subsection (a)or (b) of this Section to be paid by it to the Administrative Agent (orany sub-agent thereof), the L/C Issuer or any Related Party of any of theforegoing, each Lender severally agrees to pay to the Administrative Agent (orany such sub-agent), the L/C Issuer or such Related Party, as the case may be,such Lender’s Applicable Percentage (determined as of the time that theapplicable unreimbursed expense or indemnity payment is sought) of such unpaidamount, provided that the unreimbursed expense or indemnified loss,claim, damage, liability or related expense, as the case may be, was incurredby or asserted against the Administrative Agent (or any such sub-agent) or theL/C Issuer in its capacity as such, or against any Related Party of any of theforegoing acting for the Administrative Agent (or any such sub-agent) or L/CIssuer in connection with such capacity. The obligations of the Lenders underthis subsection (c) are subject to the provisions of Section 2.12(d).

 

86

----

 

(d)           Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicablelaw, the Borrower and the Lenders, except as otherwise specifically providedherein, shall not assert, and hereby waives, any claim against any Indemniteeor Loan Party, as applicable, on any theory of liability, for special,indirect, consequential or punitive damages (as opposed to direct or actualdamages) arising out of, in connection with, or as a result of, this Agreement,any other Loan Document or any agreement or instrument contemplated hereby, thetransactions contemplated hereby or thereby, any Loan or Letter of Credit orthe use of the proceeds thereof. No Indemnitee referred to in subsection (b)above shall be liable for any damages arising from the use by unintendedrecipients of any information or other materials distributed to such unintendedrecipients by such Indemnitee through telecommunications, electronic or otherinformation transmission systems in connection with this Agreement or the otherLoan Documents or the transactions contemplated hereby or thereby other thanfor direct or actual damages resulting from the gross negligence or willfulmisconduct of such Indemnitee as determined by a final and nonappealablejudgment of a court of competent jurisdiction.

 

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

 

(f)            Survival. The agreements in this Section shall survive the resignation of theAdministrative Agent, the L/C Issuer and the Swing Line Lender, the replacementof any Lender, the termination of the Aggregate Commitments and the repayment,satisfaction or discharge of all the other Obligations.

 

**11.05.****    ****Payments Set Aside**. To the extent that any payment by or onbehalf of the Borrower is made to the Administrative Agent, the L/C Issuer orany Lender, or the Administrative Agent, the L/C Issuer or any Lender exercisesits right of setoff, and such payment or the proceeds of such setoff or anypart thereof is subsequently invalidated, declared to be fraudulent orpreferential, set aside or required (including pursuant to any settlemententered into by the Administrative Agent, the L/C Issuer or such Lender in itsdiscretion) to be repaid to a trustee, receiver or any other party, inconnection with any proceeding under any Debtor Relief Law or otherwise, then(a) to the extent of such recovery, the obligation or part thereof originallyintended to be satisfied shall be revived and continued in full force andeffect as if such payment had not been made or such setoff had not occurred,and (b) each Lender and the L/C Issuer severally agrees to pay to theAdministrative Agent upon demand its applicable share (without duplication) ofany amount so recovered from or repaid by the Administrative Agent, plusinterest thereon from the date of such demand to the date such payment is madeat a rate per annum equal to the applicable Overnight Rate from time to time ineffect, in the applicable currency of such recovery or payment. The obligationsof the Lenders and the L/C Issuer under clause (b) of the preceding sentenceshall survive the payment in full of the Obligations and the termination ofthis Agreement.

 

**11.06.****    ****Successors and Assigns.**

 

(a)           Successors and Assigns Generally. The provisions of this Agreement shall bebinding upon and inure to the benefit of the parties hereto and theirrespective successors and assigns permitted hereby, except that neither theBorrower nor any other Loan Party (except as provided in Section 7.04(a)may assign or otherwise transfer any of its rights or obligations hereunderwithout the prior written consent of the Administrative Agent and each Lenderand no Lender may assign or otherwise transfer any of its rights or obligationshereunder except (i) to an assignee in accordance with the provisions ofsubsection (b) of this Section, (ii) by way of participation in accordance withthe provisions of subsection (d) of this Section, (iii) by way of pledge orassignment of a security interest subject to the restrictions of subsection (f)of this Section, or (iv) to an SPC in accordance with the provisions ofsubsection (h) of this Section (and any other attempted assignment or transferby any party hereto shall be null and void). 

 

87

----

 

Nothingin this Agreement, expressed or implied, shall be construed to confer upon anyPerson (other than the parties hereto, their respective successors and assignspermitted hereby, Participants to the extent provided in subsection (d) of thisSection and, to the extent expressly contemplated hereby, the Related Partiesof each of the Administrative Agent, the L/C Issuer and the Lenders) any legalor equitable right, remedy or claim under or by reason of this Agreement.

 

(b)           Assignments by Lenders. Any Lender may at any time assign to one ormore assignees all or a portion of its rights and obligations under thisAgreement (including all or a portion of its Commitment and the Loans(including for purposes of this subsection (b), participations in L/CObligations and in Swing Line Loans) at the time owing to it); providedthat any such assignment shall be subject to the following conditions:

 

(i)            Minimum Amounts.

 

(A)          in the case of an assignment of the entireremaining amount of the assigning Lender’s Commitment and the Loans at the timeowing to it or in the case of an assignment to a Lender, an Affiliate of aLender or an Approved Fund, no minimum amount need be assigned; and

 

(B)           in any case not described in subsection(b)(i)(A) of this Section, the aggregate amount of the Commitment (which forthis purpose includes Loans outstanding thereunder) or, if the Commitment isnot then in effect, the principal outstanding balance of the Loans of theassigning Lender subject to each such assignment, determined as of the date theAssignment and Assumption with respect to such assignment is delivered to theAdministrative Agent or, if “Trade Date” is specified in the Assignment andAssumption, as of the Trade Date, shall not be less than $5,000,000****unless each of the Administrative Agentand, so long as no Event of Default has occurred and is continuing, theBorrower otherwise consents (each such consent not to be unreasonably withheldor delayed); provided, however, that concurrent assignments tomembers of an Assignee Group and concurrent assignments from members of anAssignee Group to a single assignee (or to an assignee and members of itsAssignee Group) will be treated as a single assignment for purposes ofdetermining whether such minimum amount has been met.

 

(ii)           Proportionate Amounts. Each partial assignment shall be made as anassignment of a proportionate part of all the assigning Lender’s rights andobligations under this Agreement with respect to the Loans or the Commitmentassigned, except that this clause (ii) shall not apply to the Swing LineLender’s rights and obligations in respect of Swing Line Loans;

 

(iii)          Required Consents. No consent shall be required for anyassignment except to the extent required by subsection (b)(i)(B) of thisSection and, in addition:

 

(A)          the consent of the Borrower (such consent notto be unreasonably withheld or delayed) shall be required unless (1) an Eventof Default has occurred and is continuing at the time of such assignment or (2)such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;

 

(B)           the consent of the Administrative Agent (suchconsent not to be unreasonably withheld or delayed) shall be required forassignments in respect of (i) any Commitment if such assignment is to a Personthat is not a Lender with a Commitment, an Affiliate of such Lender or anApproved Fund with respect to such Lender or (ii) the 

 

88

----

 

Term Loan to a Person that is not a Lender, an Affiliate of a Lender oran Approved Fund;

 

(C)           the consent of the L/C Issuer (such consentnot to be unreasonably withheld or delayed) shall be required for anyassignment that increases the obligation of the assignee to participate inexposure under one or more Letters of Credit (whether or not then outstanding);and

 

(D)          the consent of the Swing Line Lender (suchconsent not to be unreasonably withheld or delayed) shall be required for anyassignment in respect of the Revolving Credit Facility.

 

(iv)          Assignment and Assumption. The parties to each assignment shallexecute and deliver to the Administrative Agent an Assignment and Assumption,together with a processing and recordation fee in the amount, if any, requiredas set forth in Schedule 11.06; provided, however, thatthe Administrative Agent may, in its sole discretion, elect to waive suchprocessing and recordation fee in the case of any assignment. The assignee, ifit is not a Lender, shall deliver to the Administrative Agent an AdministrativeQuestionnaire.

 

(v)           No Assignment to Borrower. No such assignment shall be made to theBorrower or any of the Borrower’s Affiliates or Subsidiaries.

 

(vi)          No Assignment to Natural Persons. No such assignment shall be made to anatural person.

 

Subject to acceptance and recording thereof by the Administrative Agentpursuant to subsection (c) of this Section, from and after the effective datespecified in each Assignment and Assumption, the assignee thereunder shall be aparty to this Agreement and, to the extent of the interest assigned by suchAssignment and Assumption, have the rights and obligations of a Lender underthis Agreement, and the assigning Lender thereunder shall, to the extent of theinterest assigned by such Assignment and Assumption, be released from itsobligations under this Agreement (and, in the case of an Assignment andAssumption covering all of the assigning Lender’s rights and obligations underthis Agreement, such Lender shall cease to be a party hereto) but shallcontinue to be entitled to the benefits of Sections 3.01, 3.04, 3.05,and 11.04 with respect to facts and circumstances occurring prior to theeffective date of such assignment. Upon request, the Borrower (at its expense)shall execute and deliver a Note to the assignee Lender. Any assignment or transferby a Lender of rights or obligations under this Agreement that does not complywith this subsection shall be treated for purposes of this Agreement as a saleby such Lender of a participation in such rights and obligations in accordancewith subsection (d) of this Section.

 

(c)           Register. The Administrative Agent, acting solely for this purpose as an agentof the Borrower, shall maintain at the Administrative Agent’s Office a copy ofeach Assignment and Assumption delivered to it and a register for therecordation of the names and addresses of the Lenders, and the Commitments of,and principal amounts of the Loans and L/C Obligations owing to, each Lenderpursuant to the terms hereof from time to time (the “Register”). Theentries in the Register shall be conclusive, and the Borrower, theAdministrative Agent and the Lenders may treat each Person whose name isrecorded in the Register pursuant to the terms hereof as a Lender hereunder forall purposes of this Agreement, notwithstanding notice to the contrary. TheRegister shall be available for inspection by the Borrower and any Lender, atany reasonable time and from time to time upon reasonable prior notice.

 

(d)           Participations. Any Lender may at any time, without theconsent of, or notice to, the Borrower or the Administrative Agent, sellparticipations to any Person (other than a natural person or the 

 

89

----

 

Borroweror any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)in all or a portion of such Lender’s rights and/or obligations under thisAgreement (including all or a portion of its Commitment and/or the Loans(including such Lender’s participations in L/C Obligations and/or Swing LineLoans) owing to it); provided that (i) such Lender’s obligationsunder this Agreement shall remain unchanged, (ii) such Lender shall remainsolely responsible to the other parties hereto for the performance of suchobligations and (iii) the Borrower, the Administrative Agent, the Lendersand the L/C Issuer shall continue to deal solely and directly with such Lenderin connection with such Lender’s rights and obligations under this Agreement.

 

Any agreement or instrument pursuant to which a Lender sells such aparticipation shall provide that such Lender shall retain the sole right toenforce this Agreement and to approve any amendment, modification or waiver ofany provision of this Agreement; provided that such agreement orinstrument may provide that such Lender will not, without the consent of theParticipant, agree to any amendment, waiver or other modification described inthe first proviso to Section 11.01 that affects such Participant.Subject to subsection (e) of this Section, the Borrower agrees that eachParticipant shall be entitled to the benefits of Sections 3.01, 3.04and 3.05**to the sameextent as if it were a Lender and had acquired its interest by assignmentpursuant to subsection (b) of this Section. To the extent permitted by law,each Participant also shall be entitled to the benefits of Section 11.08**as though it were a Lender, providedsuch Participant agrees to be subject to Section 2.13 as though it werea Lender.

 

(e)           Limitations upon Participant Rights. A Participant shall not be entitled toreceive any greater payment under Section 3.01 or 3.04**than the applicable Lender would havebeen entitled to receive with respect to the participation sold to suchParticipant, unless the sale of the participation to such Participant is madewith the Borrower’s prior written consent. A Participant that would be aForeign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01unless the Borrower is notified of the participation sold to such Participantand such Participant agrees, for the benefit of the Borrower, to comply with Section3.01(e) as though it were a Lender.

 

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

 

(g)           Electronic Execution of Assignments. The words “execution,” “signed,”“signature,” and words of like import in any Assignment and Assumption shall bedeemed to include electronic signatures or the keeping of records in electronicform, each of which shall be of the same legal effect, validity orenforceability as a manually executed signature or the use of a paper-basedrecordkeeping system, as the case may be, to the extent and as provided for inany applicable law, including the Federal Electronic Signatures in Global andNational Commerce Act, the New York State Electronic Signatures and RecordsAct, or any other similar state laws based on the Uniform ElectronicTransactions Act.

 

(h)           Special Purpose Funding Vehicles. Notwithstanding anything to the contrarycontained herein, any Lender (a “Granting Lender”) may grant to aspecial purpose funding vehicle identified as such in writing from time to timeby the Granting Lender to the Administrative Agent and the Borrower (an “SPC”)the option to provide all or any part of any Loan that such Granting Lenderwould otherwise be obligated to make pursuant to this Agreement; providedthat (i) nothing herein shall constitute a commitment by any SPC to fund anyLoan, and (ii) if an SPC elects not to exercise such option or otherwise failsto make all or any part of such Loan, the Granting Lender shall be obligated tomake such Loan pursuant to the terms hereof or, if it fails to do so, to makesuch payment to the Administrative 

 

90

----

 

Agentas is required under Section 2.12(b)(ii). Each party hereto herebyagrees that (i) neither the grant to any SPC nor the exercise by any SPC ofsuch option shall increase the costs or expenses or otherwise increase orchange the obligations of the Borrower under this Agreement (including itsobligations under Section 3.04), (ii) no SPC shall be liable for anyindemnity or similar payment obligation under this Agreement for which a Lenderwould be liable, and (iii) the Granting Lender shall for all purposes,including the approval of any amendment, waiver or other modification of anyprovision of any Loan Document, remain the lender of record hereunder. Themaking of a Loan by an SPC hereunder shall utilize the Commitment of theGranting Lender to the same extent, and as if, such Loan were made by suchGranting Lender. In furtherance of the foregoing, each party hereto herebyagrees (which agreement shall survive the termination of this Agreement) that, priorto the date that is one year and one day after the payment in full of alloutstanding commercial paper or other senior debt of any SPC, it will notinstitute against, or join any other Person in instituting against, such SPCany bankruptcy, reorganization, arrangement, insolvency, or liquidationproceeding under the laws of the United States or any State thereof.Notwithstanding anything to the contrary contained herein, any SPC may (i) withnotice to, but without prior consent of the Borrower and the AdministrativeAgent and with the payment of a processing fee in the amount of $2,500, assignall or any portion of its right to receive payment with respect to any Loan tothe Granting Lender and (ii) disclose on a confidential basis any non-publicinformation relating to its funding of Loans to any rating agency, commercialpaper dealer or provider of any surety or Guarantee or credit or liquidityenhancement to such SPC.

 

(i)            Resignation as L/C Issuer or Swing LineLender after Assignment.Notwithstanding anything to the contrary contained herein, if at any time Bankof America assigns all of its Commitment and Committed Loans pursuant tosubsection (b) above, Bank of America may, (i) upon 30 days’ notice to theBorrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ noticeto the Borrower, resign as Swing Line Lender. In the event of any suchresignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitledto appoint from among the Lenders a successor L/C Issuer or Swing Line Lenderhereunder; provided, however, that no failure by the Borrower toappoint any such successor shall affect the resignation of Bank of America asL/C Issuer or Swing Line Lender, as the case may be. If Bank of America resignsas L/C Issuer, it shall retain all the rights, powers, privileges and duties ofthe L/C Issuer hereunder with respect to all Letters of Credit outstanding asof the effective date of its resignation as L/C Issuer and all L/C Obligationswith respect thereto (including the right to require the Lenders to make BaseRate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retainall the rights of the Swing Line Lender provided for hereunder with respect toSwing Line Loans made by it and outstanding as of the effective date of suchresignation, including the right to require the Lenders to make Base Rate Loansor fund risk participations in outstanding Swing Line Loans pursuant to Section2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing LineLender, (a) such successor shall succeed to and become vested with all of therights, powers, privileges and duties of the retiring L/C Issuer or Swing LineLender, as the case may be, and (b) the successor L/C Issuer shall issueletters of credit in substitution for the Letters of Credit, if any,outstanding at the time of such succession or make other arrangementssatisfactory to Bank of America to effectively assume the obligations of Bankof America with respect to such Letters of Credit.

 

**11.07.****    ****Treatment of CertainInformation; Confidentiality.**Eachof the Administrative Agent, the Lenders and the L/C Issuer agrees to maintainthe confidentiality of the Information (as defined below), except thatInformation may be disclosed (a) to its Affiliates and to its and itsAffiliates’ respective partners, directors, officers, employees, agents,advisors and representatives (it being understood that the Persons to whom suchdisclosure is made will be informed of the confidential nature of suchInformation and instructed to keep such Information confidential), (b) to theextent requested by any regulatory authority purporting to have jurisdictionover it (including any self-regulatory authority, 

 

91

----

 

suchas the National Association of Insurance Commissioners), (c) to the extentrequired by applicable laws or regulations or by any subpoena or similar legalprocess, (d) to any other party hereto, (e) in connection with the exercise ofany remedies hereunder or under any other Loan Document or any action orproceeding relating to this Agreement or any other Loan Document or theenforcement of rights hereunder or thereunder, (f) subject to an agreementcontaining provisions substantially the same as those of this Section, to (i)any assignee of or Participant in, or any prospective assignee of orParticipant in, any of its rights or obligations under this Agreement or (ii)any actual or prospective counterparty (or its advisors) to any swap orderivative transaction relating to the Borrower and its obligations, (g) withthe consent of the Borrower or (h) to the extent such Information (x) becomespublicly available other than as a result of a breach of this Section or (y)becomes available to the Administrative Agent, any Lender, the L/C Issuer orany of their respective Affiliates on a nonconfidential basis from a sourceother than the Borrower.

 

For purposes of this Section, “Information”means all information received from any Loan Party or any Subsidiary thereofrelating to any Loan Party or any Subsidiary thereof or any of their respectivebusinesses, other than any such information that is available to theAdministrative Agent, any Lender or the L/C Issuer on a nonconfidential basisprior to disclosure by any Loan Party or any Subsidiary thereof, providedthat, in the case of information received from a Loan Party or any suchSubsidiary after the date hereof, such information is clearly identified at thetime of delivery as confidential. Any Person required to maintain theconfidentiality of Information as provided in this Section shall be consideredto have complied with its obligation to do so if such Person has exercised thesame degree of care to maintain the confidentiality of such Information as suchPerson would accord to its own confidential information.

 

Each of the Administrative Agent, the Lenders andthe L/C Issuer acknowledges that (a) the Information may include materialnon-public information concerning the Borrower or a Subsidiary, as the case maybe, (b) it has developed compliance procedures regarding the use of materialnon-public information and (c) it will handle such material non-publicinformation in accordance with applicable Law, including Federal and statesecurities Laws.

 

**11.08.****    ****Right of Setoff.**If an Event of Default shall have occurredand be continuing, each Lender, the L/C Issuer and each of their respectiveAffiliates is hereby authorized at any time and from time to time, to thefullest extent permitted by applicable law, to set off and apply any and alldeposits (general or special, time or demand, provisional or final, in whatevercurrency) at any time held and other obligations (in whatever currency) at anytime owing by such Lender, the L/C Issuer or any such Affiliate to or for thecredit or the account of the Borrower or any other Loan Party against any andall of the obligations of the Borrower or such Loan Party now or hereafterexisting under this Agreement or any other Loan Document to such Lender or theL/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shallhave made any demand under this Agreement or any other Loan Document or areowed to a branch or office of such Lender or the L/C Issuer different from thebranch or office holding such deposit or obligated on such indebtedness. Therights of each Lender, the L/C Issuer and their respective Affiliates underthis Section are in addition to other rights and remedies (including otherrights of setoff) that such Lender, the L/C Issuer or their respectiveAffiliates may have. Each Lender and the L/C Issuer agrees to notify theBorrower and the Administrative Agent promptly after any such setoff andapplication, provided that the failure to give such notice shall notaffect the validity of such setoff and application. Each Lender and the L/CIssuer agrees to notify the Borrower and the Administrative Agent promptlyafter any such setoff and application, provided that the failure to givesuch notice shall not affect the validity of such setoff and application.

 

**11.09.****    ****Interest Rate Limitation**. Notwithstanding anything to the contrarycontained in any Loan Document, the interest paid or agreed to be paid underthe Loan Documents shall not exceed the 

 

92

----

 

maximumrate of non-usurious interest permitted by applicable Law (the “Maximum Rate”).If the Administrative Agent or any Lender shall receive interest in an amountthat exceeds the Maximum Rate, the excess interest shall be applied to theprincipal of the Loans or, if it exceeds such unpaid principal, refunded to theBorrower. In determining whether the interest contracted for, charged, orreceived by the Administrative Agent or a Lender exceeds the Maximum Rate, suchPerson may, to the extent permitted by applicable Law, (a) characterize anypayment that is not principal as an expense, fee, or premium rather thaninterest, (b) exclude voluntary prepayments and the effects thereof, and (c)amortize, prorate, allocate, and spread in equal or unequal parts the totalamount of interest throughout the contemplated term of the Obligationshereunder.

 

**11.10.****    ****Counterparts; Integration;Effectiveness.**ThisAgreement may be executed in counterparts (and by different parties hereto indifferent counterparts), each of which shall constitute an original, but all ofwhich when taken together shall constitute a single contract. This Agreementand the other Loan Documents constitute the entire contract among the partiesrelating to the subject matter hereof and supersede any and all previousagreements and understandings, oral or written, relating to the subject matterhereof. Except as provided in Section 4.01, this Agreement shall becomeeffective when it shall have been executed by the Administrative Agent and whenthe Administrative Agent shall have received counterparts hereof that, whentaken together, bear the signatures of each of the other parties hereto.Delivery of an executed counterpart of a signature page of this Agreement bytelecopy shall be effective as delivery of a manually executed counterpart ofthis Agreement.

 

**11.11.****    ****Survival of Representationsand Warranties.**Allrepresentations and warranties made hereunder and in any other Loan Document orother document delivered pursuant hereto or thereto or in connection herewithor therewith shall survive the execution and delivery hereof and thereof. Suchrepresentations and warranties have been or will be relied upon by theAdministrative Agent and each Lender, regardless of any investigation made bythe Administrative Agent or any Lender or on their behalf and notwithstandingthat the Administrative Agent or any Lender may have had notice or knowledge ofany Default at the time of any Credit Extension, and shall continue in fullforce and effect as long as any Loan or any other Obligation hereunder shallremain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.

 

**11.12.****    ****Severability**. If any provision of this Agreement or theother Loan Documents is held to be illegal, invalid or unenforceable, (a) thelegality, validity and enforceability of the remaining provisions of thisAgreement and the other Loan Documents shall not be affected or impairedthereby and (b) the parties shall endeavor in good faith negotiations toreplace the illegal, invalid or unenforceable provisions with valid provisionsthe economic effect of which comes as close as possible to that of the illegal,invalid or unenforceable provisions. The invalidity of a provision in aparticular jurisdiction shall not invalidate or render unenforceable suchprovision in any other jurisdiction.

 

**11.13.****    ****Replacement of Lenders.**If any Lender requests compensation underSection 3.04, or if the Borrower is required to pay any additional amount toany Lender or any Governmental Authority for the account of any Lender pursuantto Section 3.01, if any Lender is a Defaulting Lender or if any othercircumstance exists hereunder that gives the Borrower the right to replace aLender as a party hereto, then the Borrower may, at its sole expense andeffort, upon notice to such Lender and the Administrative Agent, require suchLender to assign and delegate, without recourse (in accordance with and subjectto the restrictions contained in, and consents required by, Section 11.06),all of its interests, rights and obligations under this Agreement and therelated Loan Documents to an assignee that shall assume such obligations (whichassignee may be another Lender, if a Lender accepts such assignment), providedthat:

 

93

----

 

 

(a)           the Borrower shall have paid to the Administrative Agent the assignmentfee specified in Section 11.06(b);

 

(b)           such Lender shall have received payment of an amount equal to theoutstanding principal of its Loans and L/C Advances, accrued interest thereon,accrued fees and all other amounts payable to it hereunder and under the otherLoan Documents (including any amounts under Section 3.05) from theassignee (to the extent of such outstanding principal and accrued interest andfees) or the Borrower (in the case of all other amounts);

 

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

 

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

 

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

 

**11.14.****    ****Governing Law; Jurisdiction;Etc.**

 

(a)           GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, ANDCONSTRUED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF PENNSYLVANIA.

 

(b)           SUBMISSION TO JURISDICTION. EACH OF THE BORROWER AND HOLDINGSIRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THENONEXCLUSIVE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIASITTING IN PHILADELPHIA COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THEEASTERN DISTRICT OF PENNSYLVANIA, AND ANY APPELLATE COURT FROM ANY THEREOF, INANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANYOTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, ANDEACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALLCLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINEDIN SUCH STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INSUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT INANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHERJURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHTTHAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVETO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOANDOCUMENT AGAINST THE BORROWER OR HOLDINGS OR ITS PROPERTIES IN THE COURTS OFANY JURISDICTION.

 

(c)           WAIVER OF VENUE. EACH OF THE BORROWER AND HOLDINGSIRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BYAPPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYINGOF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THISAGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN 

 

94

----

 

PARAGRAPH (B)OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THEFULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENTFORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

 

(d)           SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TOSERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02.NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVEPROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

 

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

 

**11.16.****    ****No Advisory or FiduciaryResponsibility.**Inconnection with all aspects of each transaction contemplated hereby, each ofthe Borrower and Holdings acknowledges and agrees, and acknowledges itsAffiliates’ understanding that: (i) the credit facility provided for hereunderand any related arranging or other services in connection therewith (includingin connection with any amendment, waiver or other modification hereof or of anyother Loan Document) are an arm’s-length commercial transaction between theBorrower, Holdings and their respective Affiliates, on the one hand, and theAdministrative Agent and the Arranger, on the other hand, and each of Holdingsand the Borrower is capable of evaluating and understanding and understands andaccepts the terms, risks and conditions of the transactions contemplated herebyand by the other Loan Documents (including any amendment, waiver or othermodification hereof or thereof); (ii) in connection with the process leading tosuch transaction, the Administrative Agent and the Arranger each is and hasbeen acting solely as a principal and is not the financial advisor, agent orfiduciary, for the Borrower and Holdings or any of their respective Affiliates,stockholders, creditors or employees or any other Person; (iii) neither theAdministrative Agent nor the Arranger has assumed or will assume an advisory,agency or fiduciary responsibility in favor of the Borrower or Holdings withrespect to any of the transactions contemplated hereby or the process leadingthereto, including with respect to any amendment, waiver or other modificationhereof or of any other Loan Document (irrespective of whether theAdministrative Agent or the Arranger has advised or is currently advising theBorrower, Holdings or any of their respective Affiliates on other matters) andneither the Administrative Agent nor the Arranger has any obligation to theBorrower, Holdings or any of their respective Affiliates with respect to thetransactions contemplated hereby except those obligations expressly set forthherein and in the other Loan Documents; (iv) the Administrative Agent and theArranger and their respective Affiliates may be engaged in a broad range oftransactions that involve interests that differ from those of the Borrower,Holdings and their respective Affiliates, and neither the Administrative Agentnor the Arranger has any obligation to disclose any of such interests by virtueof any advisory, agency or fiduciary relationship; and (v) the AdministrativeAgent and the Arranger have not provided and will not provide any legal,accounting, regulatory or tax advice with respect to any of the transactionscontemplated hereby (including any amendment, waiver or 

 

95

----

 

othermodification hereof or of any other Loan Document) and each of the Borrower andHoldings has consulted its own legal, accounting, regulatory and tax advisorsto the extent it has deemed appropriate. Each of the Borrower and Holdingshereby waives and releases, to the fullest extent permitted by law, any claimsthat it may have against the Administrative Agent and the Arranger with respectto any breach or alleged breach of agency or fiduciary duty.

 

**11.17.****    ****USA PATRIOT Act Notice.**Each Lender that is subject to the Act (ashereinafter defined) and the Administrative Agent (for itself and not on behalfof any Lender) hereby notifies the Borrower and Holdings that pursuant to therequirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed intolaw October 26, 2001)) (the “Act”), it is required to obtain, verify andrecord information that identifies the Borrower and Holdings, which informationincludes the name and address of the Borrower and Holdings and otherinformation that will allow such Lender or the Administrative Agent, asapplicable, to identify the Borrower and Holdings in accordance with the Act.

 

**11.18.****    ****Judgment Currency**. If, for the purposes of obtaining judgmentin any court, it is necessary to convert a sum due hereunder or any other LoanDocument in one currency into another currency, the rate of exchange used shallbe that at which in accordance with normal banking procedures theAdministrative Agent could purchase the first currency with such other currencyon the Business Day preceding that on which final judgment is given. Theobligation of each Borrower in respect of any such sum due from it to theAdministrative Agent or the Lenders hereunder or under the other Loan Documentsshall, notwithstanding any judgment in a currency (the “Judgment Currency”)other than that in which such sum is denominated in accordance with theapplicable provisions of this Agreement (the “Agreement Currency”), bedischarged only to the extent that on the Business Day following receipt by theAdministrative Agent of any sum adjudged to be so due in the Judgment Currency,the Administrative Agent may in accordance with normal banking procedurespurchase the Agreement Currency with the Judgment Currency. If the amount ofthe Agreement Currency so purchased is less than the sum originally due to theAdministrative Agent from any Borrower in the Agreement Currency, such Borroweragrees, as a separate obligation and notwithstanding any such judgment, toindemnify the Administrative Agent or the Person to whom such obligation wasowing against such loss. If the amount of the Agreement Currency so purchasedis greater than the sum originally due to the Administrative Agent in suchcurrency, the Administrative Agent agrees to return the amount of any excess tosuch Borrower (or to any other Person who may be entitled thereto underapplicable law).

 

96

----

 

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

 
|   | **INFRASOURCE SERVICES, INC.** |
|--------|--------------------------------|
|   |                           |
|   |                           |
|   | By:                            | /s/  TERENCE R. MONTGOMERY |   |
|   | Name:                          | Terence  R. Montgomery |
|   | Title:                         | Senior  Vice President and Treasurer |
|   |                           |
|   |                           |
|   | **INFRASOURCE INCORPORATED**   |
|   |                           |
|   |                           |
|   | By:                            | /s/  TERENCE R. MONTGOMERY |   |
|   | Name:                          | Terence  R. Montgomery |
|   | Title:                         | Chief  Financial Officer, Senior Vice President |
|   | and  Treasurer                 |
|        |                                |  |  |  |

 

1

----

 
|   | **BANK OF AMERICA, N.A., AS   ADMINISTRATIVE AGENT** |
|--------|------------------------------------------------------|
|   |                                                 |
|   |                                                 |
|   | By:                                                  | /s/  MICHAEL R. LANGMEYER |   |
|   | Name:                                                | Michael  R. Langmeyer |
|   | Title:                                               | Assistant  Vice President |
|        |                                                      |  |  |  |

 

2

----

 
|   | **BANK OF AMERICA, N.A., AS A LENDER, L/C   ISSUER AND SWING LINE LENDER** |
|--------|----------------------------------------------------------------------------|
|   |                                                                       |
|   |                                                                       |
|   | By:                                                                        | /s/  KENNETH G. WOOD |   |
|   | Name:                                                                      | Kenneth  G. Wood |
|   | Title:                                                                     | Senior  Vice President |
|        |                                                                            |  |  |  |

 

3

----

 
|   | **JPMORGAN CHASE BANK, N.A., AS SYNDICATION  AGENT** |
|--------|------------------------------------------------------|
|   |                                                 |
|   |                                                 |
|   | By:                                                  | /s/  Lee P. Brennan |   |
|   | Name:                                                | Lee  P. Brennan |
|   | Title:                                               | Vice President |
|        |                                                      |  |  |  |

 

----

 
|   | **NATIONAL CITY BANK, DOCUMENTATION  AGENT** |
|--------|----------------------------------------------|
|   |                                         |
|   |                                         |
|   | By:                                          | /s/  Susan S. Callahan |   |
|   | Name:                                        | Susan  S. Callahan |
|   | Title:                                       | Vice President |
|        |                                              |  |  |  |

 

----

 
|   | **LASALLE BANK NATIONAL ASSOCIATION, AS  DOCUMENTATION AGENT** |
|--------|----------------------------------------------------------------|
|   |                                                           |
|   |                                                           |
|   | By:                                                            | /s/  Nick Lotz |   |
|   | Name:                                                          | Nick  Lotz |
|   | Title:                                                         | AVP |
|        |                                                                |  |  |  |

 

----

 
|   | **CITIZENS BANK OF PENNSYLVANIA** |
|--------|-----------------------------------|
|   |                              |
|   |                              |
|   | By:                               | /s/  Leslie D. Broderick |   |
|   | Name:                             | Leslie  D. Broderick |
|   | Title:                            | SVP |
|        |                                   |  |  |  |

 

----

 
|   | **HARRIS N.A.** |
|--------|-----------------|
|   |            |
|   |            |
|   | By:             | /s/  Joann L. Holman |   |
|   | Name:           | Joann  L. Holman |
|   | Title:          | Director |
|        |                 |  |  |  |

 

----

 
|   | **WACHOVIA BANK, NATIONAL ASSOCIATION** |
|--------|-----------------------------------------|
|   |                                    |
|   |                                    |
|   | By:                                     | /s/  [ILLEGIBLE] |   |
|   | Name:                                   | [ILLEGIBLE] |
|   | Title:                                  | Vice President |
|        |                                         |  |  |  |

 

----

 
|   | **PNC BANK, NATIONAL ASSOCIATION** |
|--------|------------------------------------|
|   |                               |
|   |                               |
|   | By:                                | /s/  Frank A. Pugliese |   |
|   | Name:                              | Frank  A. Pugliese |
|   | Title:                             | Senior Vice President |
|        |                                    |  |  |  |

 

----

 
|   | **NORTH FORK BUSINESSES CAPITAL CORP.** |
|--------|-----------------------------------------|
|   |                                    |
|   |                                    |
|   | By:                                     | /s/  Stephen K. Goetschius |   |
|   | Name:                                   | Stephen  K. Goetschius |
|   | Title:                                  | Senior Vice President |
|        |                                         |  |  |  |

 

----