exv4w1






Exhibit 4.1





 

 








CREDIT AGREEMENT




dated as of



November 3, 2010



among



TELVENT CANADA LTD., and TELVENT USA CORPORATION,

as Borrowers,



THE LENDERS PARTY HERETO,



and



JPMORGAN CHASE BANK, N.A.,

as Administrative Agent


 





J.P. MORGAN SECURITIES INC.,

as Bookrunner and Lead Arranger




 

 














 









 














TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE I Definitions	 	 	1	 
	SECTION 1.01.
	 	Defined Terms	 	 	1	 
	SECTION 1.02.
	 	Classification of Loans and Borrowings	 	 	18	 
	SECTION 1.03.
	 	Terms Generally	 	 	18	 
	SECTION 1.04.
	 	Accounting Terms; GAAP	 	 	18	 
	SECTION 1.05.
	 	Foreign Currency Calculations	 	 	19	 
	 
	 	 	 	 	 	 
	ARTICLE II The Credits	 	 	19	 
	SECTION 2.01.
	 	Commitments	 	 	19	 
	SECTION 2.02.
	 	Loans and Borrowings	 	 	19	 
	SECTION 2.03.
	 	Requests for Revolving Borrowings	 	 	20	 
	SECTION 2.04.
	 	Request for Term Loan Borrowing	 	 	21	 
	SECTION 2.05.
	 	Funding of Borrowings	 	 	21	 
	SECTION 2.06.
	 	Interest Elections	 	 	22	 
	SECTION 2.07.
	 	Termination and Reduction of Revolving Commitments	 	 	23	 
	SECTION 2.08.
	 	Repayment of Loans; Evidence of Debt	 	 	23	 
	SECTION 2.09.
	 	Prepayment of Loans	 	 	24	 
	SECTION 2.10.
	 	Fees	 	 	25	 
	SECTION 2.11.
	 	Interest	 	 	25	 
	SECTION 2.12.
	 	Alternate Rate of Interest	 	 	26	 
	SECTION 2.13.
	 	Increased Costs	 	 	26	 
	SECTION 2.14.
	 	Break Funding Payments	 	 	27	 
	SECTION 2.15.
	 	Taxes	 	 	28	 
	SECTION 2.16.
	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	 	 	29	 
	SECTION 2.17.
	 	Mitigation Obligations; Replacement of Lenders	 	 	30	 
	 
	 	 	 	 	 	 
	ARTICLE III Representations and Warranties	 	 	31	 
	SECTION 3.01.
	 	Organization; Powers	 	 	31	 
	SECTION 3.02.
	 	Authorization; Enforceability	 	 	31	 
	SECTION 3.03.
	 	Governmental Approvals; No Conflicts	 	 	32	 
	SECTION 3.04.
	 	Financial Condition; No Material Adverse Effect	 	 	32	 
	SECTION 3.05.
	 	Properties	 	 	32	 
	SECTION 3.06.
	 	Litigation and Environmental Matters	 	 	33	 
	SECTION 3.07.
	 	Compliance with Laws and Agreements	 	 	33	 
	SECTION 3.08.
	 	Investment Company Status	 	 	33	 
	SECTION 3.09.
	 	Taxes	 	 	33	 
	SECTION 3.10.
	 	ERISA	 	 	33	 
	SECTION 3.11.
	 	Foreign Pension Plan	 	 	34	 
	SECTION 3.12.
	 	Solvency	 	 	34	 
	SECTION 3.13.
	 	Disclosure	 	 	34	 






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	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE IV Conditions	 	 	34	 
	SECTION 4.01.
	 	Effective Date	 	 	34	 
	SECTION 4.02.
	 	Each Credit Event	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE V Affirmative Covenants	 	 	35	 
	SECTION 5.01.
	 	Financial Statements; Ratings Change and Other Information	 	 	36	 
	SECTION 5.02.
	 	Notices of Material Events	 	 	36	 
	SECTION 5.03.
	 	Existence; Conduct of Business	 	 	37	 
	SECTION 5.04.
	 	Payment of Obligations	 	 	37	 
	SECTION 5.05.
	 	Maintenance of Properties; Insurance	 	 	37	 
	SECTION 5.06.
	 	Books and Records; Inspection Rights	 	 	37	 
	SECTION 5.07.
	 	Compliance with Laws	 	 	38	 
	SECTION 5.08.
	 	Use of Proceeds	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE VI Negative Covenants	 	 	38	 
	SECTION 6.01.
	 	Liens	 	 	38	 
	SECTION 6.02.
	 	Fundamental Changes; Asset Dispositions and Nature of Business	 	 	39	 
	SECTION 6.03.
	 	Investments, Loans, Advances, Guarantees and Acquisitions	 	 	40	 
	SECTION 6.04.
	 	Swap Agreements	 	 	41	 
	SECTION 6.05.
	 	Transactions with Affiliates	 	 	41	 
	SECTION 6.06.
	 	Restrictive Agreements	 	 	41	 
	SECTION 6.07.
	 	Subordinated Indebtedness	 	 	41	 
	 
	 	 	 	 	 	 
	ARTICLE VII Events of Default	 	 	42	 
	 
	 	 	 	 	 	 
	ARTICLE VIII The Administrative Agent	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE IX Miscellaneous	 	 	46	 
	SECTION 9.01.
	 	Notices	 	 	46	 
	SECTION 9.02.
	 	Waivers; Amendments	 	 	47	 
	SECTION 9.03.
	 	Expenses; Indemnity; Damage Waiver	 	 	48	 
	SECTION 9.04.
	 	Successors and Assigns	 	 	49	 
	SECTION 9.05.
	 	Survival	 	 	52	 
	SECTION 9.06.
	 	Counterparts; Integration; Effectiveness	 	 	52	 
	SECTION 9.07.
	 	Severability	 	 	53	 
	SECTION 9.08.
	 	Right of Setoff	 	 	53	 
	SECTION 9.09.
	 	Governing Law; Jurisdiction; Consent to Service of Process	 	 	53	 
	SECTION 9.10.
	 	WAIVER OF JURY TRIAL	 	 	54	 
	SECTION 9.11.
	 	Headings	 	 	54	 
	SECTION 9.12.
	 	Confidentiality	 	 	54	 
	SECTION 9.13.
	 	Interest Rate Limitation	 	 	54	 
	SECTION 9.14.
	 	USA PATRIOT Act	 	 	55	 
	SECTION 9.15.
	 	Conversion of Currencies	 	 	55	 






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	 	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 9.16.
	 	Interest Act (Canada)	 	 	55	 






SCHEDULES:




Schedule 2.01 — Commitments

Schedule 6.01 — Existing Liens

Schedule 6.06 — Existing Restrictions





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          CREDIT AGREEMENT dated as of November 3, 2010, between TELVENT CANADA LTD. and TELVENT
USA CORPORATION, as Borrowers, the financial institutions from time to time party hereto and
JPMORGAN CHASE BANK, N.A., as Administrative Agent.




          The parties hereto agree as follows:




ARTICLE I




Definitions



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




          “5.50% Note Documents” means, collectively, that certain Indenture dated as of April
19, 2010 by the Parent in favor of BNY Corporate Trustee Services Limited, as trustee, pursuant to
which the Parent issued 5.50% Senior Subordinated Convertible Notes due 2015 and all documents
ancillary or related thereto, each as in effect on the Effective Date without giving effect to any
amendment or modification thereof (or to any waiver by the note holders thereunder of any section
thereof).




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




          “Adjusted Eurocurrency Rate” means, with respect to any Eurocurrency Loan in Dollars
for any Interest Period or for any ABR Loan, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the Eurocurrency Rate for the applicable Interest
Period multiplied by (b) the Statutory Reserve Rate. For Eurocurrency Loans in currencies other
than Dollars, “Adjusted Eurocurrency Rate” means the Eurocurrency Rate with respect to such
currencies.




          “Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder and its successors in such capacity as provided in
Article VIII.




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




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




          “Agreement” means this Credit Agreement, as amended, restated, modified or
supplemented from time to time.




          “Agreement Currency” shall have the meaning assigned to such term in Section 9.15(b).







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




          “Applicable Borrower” means, with respect to any Loan or other amount owing hereunder
or any matter pertaining to such Loan or other amount, whichever of the Borrowers is requesting,
has received or is primarily liable for such Loan or other amount.




          “Applicable Creditor” shall have the meaning assigned to such term in Section 9.15(b).




          “Applicable Lending Office” means, for the US Borrower, the Administrative Agent’s
office located at 10 S. Dearborn Floor 07, Chicago, Illinois and for the Canadian Borrower, the
office of JPMorgan Chase Bank, N.A., Louisville Branch located at 312 South Fourth Street, Floor
05, Louisville, Kentucky.




          “Applicable Maturity Date” means (a) in the case of Revolving Loans and Revolving
Commitments, the Revolving Maturity Date and (b) in the case of Term Loans and Term Commitments,
the Term Maturity Date.




          “Applicable Rate” means, for any day, with respect to any (i) Eurocurrency Revolving
Loan denominated in Dollars, 1.90% per annum, (ii) Eurocurrency Revolving Loan denominated in
Pesos, 0.0% per annum, (iii) Eurocurrency Term Loan, 2.25% per annum or (iv) ABR Loan, 0.0% per
annum.




          “Asset Disposition” means any sale, transfer or other disposition of any asset of a
Borrower or any Subsidiary in a single transaction or in a series of related transactions (other
than the sale of inventory or products in the ordinary course of business, the sale of obsolete or
worn out property in the ordinary course of business or the sale of cash, cash equivalents and
other investments made in accordance with Section 6.03(a) in the ordinary course of business).




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




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







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




          “Borrowers” means, individually and collectively, the Canadian Borrower and the US
Borrower and “Borrower” means any of the foregoing.




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




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




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City and Chicago are authorized or required by law to remain closed;
provided that, when used in connection with a Revolving Loan made to or requested by the
Canadian Borrower, the term “Business Day” shall include only days on which banks are
generally open in Mexico City, Mexico and Toronto, Canada for the conduct of substantially all of
their commercial lending activities or for the sale and purchase of Pesos.




          “Canadian Borrower” means Telvent Canada Ltd., a company organized under the laws of
Canada.




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




          “Capital Expenditures” means, without duplication, any expenditure or commitment to
expend money for any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of any Borrower and its Subsidiaries
prepared in accordance with GAAP.




          “Change in Control” means (a) a situation under which any person or group of persons
(other than Abengoa, S.A.) acting individually or in concert gains “Control” over the Parent; or
(b) the Parent shall cease to own directly or indirectly at least 51% of each of the Borrowers and
DTN. For purposes of the foregoing, “Control” shall have the meaning set forth in section 42 of
the Spanish Civil Code.




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






3









 







date of this Agreement; provided however, for purposes of this Agreement, the Dodd-Frank Wall
Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives in
connection therewith are deemed to have gone into effect and been adopted after the date of this
Agreement.




          “Charges” has the meaning set forth in Section 9.13.




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




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




          “Commitments” means, as of any day, collectively, the Term Commitments and the
Revolving Commitments.




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




          “Credit Documents” means this Agreement, each promissory note, if any, delivered
pursuant to Section 2.08(d), and each Guaranty.




          “Credit Parties” means the Borrowers and each Guarantor.




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




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




          “Dollar Equivalent” means, on any date of determination (a) with respect to any amount
in Dollars, such amount, and (b) with respect to any amount in Pesos, the equivalent in Dollars of
such amount, determined by the Administrative Agent pursuant to Section 1.05 using the Exchange
Rate with respect to Pesos at the time in effect under the provisions of such Section.




          “DTN” means Telvent DTN, Inc., a Delaware corporation.




          “EBITDA” means, with respect to any Person, the gross positive or negative operating
results before interest, tax, depreciation and amortization of such Person.




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




          “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment,






4









 







preservation or reclamation of natural resources, the management, release or threatened
release of any Hazardous Material or to health and safety matters.




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




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




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




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




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




          “Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether
such Loan or Borrowing is bearing interest at a rate determined by reference to the Adjusted
Eurocurrency Rate.







5









 








          “Eurocurrency Rate” means,





     (a) with respect to any Eurocurrency Loan denominated in Dollars for any Interest
Period, the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute
page of such service, or any successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such page of such service, as
determined by the Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to Dollar deposits in the London interbank market)
at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for Dollar deposits with a maturity comparable to such
Interest Period To the extent that an interest rate is not ascertainable pursuant to this
clause (a) of this definition, the “Eurocurrency Rate” with respect to such
Eurodollar Loan for such Interest Period shall be the rate at which deposits in the
applicable currency of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period; and




     (b) with respect to any Eurocurrency Loan denominated in Pesos for any Interest Period,
a rate of interest per annum established by JPMorgan Chase Bank, N.A. in its sole and
absolute discretion, as last quoted to the Canadian Borrower (on behalf of the Applicable
Borrower) no later than 2:00 p.m. Chicago time two (2) Business Days prior to the
disbursement or continuation of such Loan in Pesos.



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




          “Exchange Rate” means on any day, for purposes of determining the Dollar Equivalent of
any currency other than Dollars, the rate at which such currency may be exchanged into Dollars at
11:00 a.m. Local Time on such day on the Reuters Currency pages, if available, for such currency.
In the event that such rate does not appear on any Reuters Currency pages, the Exchange Rate shall
be determined by reference to such other publicly available service for displaying exchange rates
as may be agreed upon by the Administrative Agent and the Borrowers, or, in the absence of such an
agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange
of the Administrative Agent in the market where its foreign currency exchange operations in respect
of such currency are then being conducted, at or about such time as the Administrative Agent shall
elect after determining that such rates shall be the basis for determining the Exchange Rate, on
such date for the purchase of Dollars for delivery two Business Days later; provided that
if at the time of any such determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may use any reasonable method it deems appropriate to determine such rate, and
such determination shall be conclusive absent manifest error.




          “Exchange Rate Date” means, if on such date any outstanding Loan is (or any Loan that
has been requested at such time would be) denominated in a currency other than Dollars, each of:




          (a) the last Business Day of each calendar month,




6









 








          (b) if an Event of Default has occurred and is continuing, any Business Day designated as an
Exchange Rate Date by the Administrative Agent in its sole discretion, and




          (c) each date (with such date to be reasonably determined by the Administrative Agent) that is
on or about the date of a Borrowing Request or an Interest Election Request with respect to any
Loan.




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, or any
other recipient of any payment to be made by or on account of any obligation of any Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
lending office is located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which any Borrower is organized or in which
its principal office is located, (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 2.17(b)), any withholding tax that is imposed
on amounts payable to such Foreign Lender (or any agent acting on behalf of such Foreign Lender) at
the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office)
or is attributable to such Foreign Lender’s failure to comply with Section 2.15(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new lending office (or assignment), to receive additional amounts from the Borrowers with
respect to such withholding tax pursuant to Section 2.15(a) and (d) any Tax imposed under Sections
1471 through 1474 of the Code.




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




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




          “Foreign Pension Plan” means any plan, fund (including, without limitation, any
superannuation fund) or other similar program established or maintained outside the United States
by a Borrower or any one or more of the Subsidiaries primarily for the benefit of employees of such
Borrower or any Subsidiary residing outside the United States, which plan, fund or other similar
program provides, or results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination or severance of employment, and which plan is
not subject to ERISA or the Code.




          “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which any Borrower is organized. For purposes of this definition,






7









 







the United States of America, each State thereof and the District of Columbia shall be deemed
to constitute a single jurisdiction.




          “Foreign Subsidiary” means any Subsidiary that is incorporated or organized under the
laws of any jurisdiction other than the United States of America, any State thereof or the District
of Columbia.




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




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




          “Group” has the meaning assigned to such term in the Parent Credit Agreement.




          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business. The amount of any Guarantee made by any guarantor shall be
deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee is made and (b) the maximum amount for which such
guarantor may be liable pursuant to the terms of the instrument embodying such Guarantee, unless
(in the case of a primary obligation that is not Indebtedness) such primary obligation and the
maximum amount for which such guarantor may be liable are not stated or determinable, in which case
the amount of such Guarantee shall be such guarantor’s maximum reasonably anticipated liability in
respect thereof as determined by the Borrowers in good faith.




          “Guarantor” means each Borrower, DTN, Parent and any other Person from time to time a
party to a Guaranty.




          “Guaranty” means, individually and collectively, that certain (i) Parent Guaranty
dated as of the date hereof by the Parent in favor of the Administrative Agent and the Lenders,
(ii) Affiliate Guaranty dated as of the date hereof by each of DTN and the Borrowers in favor of
the Administrative Agent and the Lenders and (iii) any other guaranty entered into from time to






8









 







time by an Affiliate of the Borrowers in favor of the Administrative Agent and the Lenders, in
each case as from time to time amended, restated or supplemented (by joinder or otherwise).




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




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




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Interest Cover Ratio” has the meaning given to the term “Interest Cover Ratio” in the
Parent Credit Agreement (giving effect to all related definitions set forth in the Parent Credit
Agreement).




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




          “Interest Payment Date” means (a) with respect to any ABR Loan, the last Business Day
of each calendar quarter, commencing on the last Business Day of the calendar quarter ending on
December 31, 2010 and (b) with respect to any Eurocurrency Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part.




          “Interest Period” means with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two or three month(s) thereafter, as the Applicable Borrower may elect;
provided, that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (ii) any Interest Period pertaining to a






9









 







Eurocurrency Borrowing that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion or continuation of
such Borrowing.




          “Judgment Currency” has the meaning assigned to such term in Section 9.15(b).




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




          “Leverage Ratio” has the meaning given to the term “Leverage Ratio” in the Parent
Credit Agreement (giving effect to all related definitions set forth in the Parent Credit
Agreement); provided that for purposes of this Agreement “Net Financial Debt” (as defined
in the Parent Credit Agreement and utilized therein in connection with the computation of the
Leverage Ratio) shall be deemed to exclude the 5.50% Senior Subordinated Convertible Notes due 2015
issued pursuant to the 5.50% Note Documents.




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




          “Loan” means a Revolving Loan or a Term Loan.




          “Local Time” means, (a) with respect to any Loan denominated in Dollars, Chicago time
and (b) with respect to any Loan denominated in Pesos, Toronto time.




          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations or financial condition, of any Credit Party and its Subsidiaries taken as a whole, (b)
the ability of any Credit Party to perform any of its obligations under any Credit Document or (c)
the rights of or benefits available to the Administrative Agent or the Lenders under the Credit
Documents.




          “Material Indebtedness” means Indebtedness (other than the Loans), or obligations in
respect of one or more Swap Agreements, of any one or more of the Credit Parties or their
Subsidiaries in an aggregate principal amount exceeding € 15,000,000. For purposes of determining
Material Indebtedness, the “principal amount” of the obligations of any Credit Party or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that such Credit Party or such Subsidiary would be
required to pay if such Swap Agreement were terminated at such time.




          “Maximum Rate” has the meaning set forth in Section 9.13.







10









 








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




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




          “Non-Recourse Assets” means a current or future member of the Group having a specific
purpose and non-recourse financing to the Parent or Group. Where there is any uncertainty as to
their non-recourse status, the Borrowers will cause the Parent to appoint a legal advisor to the
satisfaction of the Administrative Agent to issue a legal opinion to such end which should also be
to the satisfaction of the Administrative Agent.




          “Ongoing Parent Credit Agreement” means that certain Facilities Agreement dated as of
March 23, 2010, as amended on July 15, 2010, by and among the Parent, the other parties signatory
thereto, and ING Bank N.V. London Branch, as Agent, as amended, modified, amended and restated
and/or refinanced from time to time.




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




          “Parent” means Telvent GIT, SA, a Spanish sociedad anónima.




          “Parent Credit Agreement” means that certain Facilities Agreement dated as of March
23, 2010, as amended on July 15, 2010, by and among the Parent, the other parties signatory
thereto, and ING Bank N.V. London Branch, as Agent as in effect on the Effective Date without
giving effect to any amendment or modification thereof (or to any waiver by the lenders thereunder
of any section thereof).




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




          “Permitted Encumbrances” means:




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




          (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with Section 5.04;




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







11









 








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




          (e) judgment liens in respect of judgments that do not constitute an Event of Default under
clause (j) of Article VII;




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




          (g) any Lien arising under any title retention or hire purchase or conditional sale
arrangement or arrangements having similar effect in respect of the assets acquired or in use in
the ordinary course of business and in accordance with the standard activity of the supplier
involved or with the usual terms of such transactions, providing such lien or security interest was
not constituted as a result of any default or omission by any Borrower;



provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




          “Permitted Financial Indebtedness” means:




          (a) any Indebtedness arising under a Capital Lease Obligation (except for those deemed to be a
sale and lease-back);




          (b) any Indebtedness arising under a finance lease deemed to be a sale and lease-back which
individually or jointly does not exceed € 50,000,000;




          (c) any Indebtedness outstanding on the Effective Date (including Indebtedness evidenced by
the 5.50% Note Documents and the Parent Credit Agreement); and




          (d) any intercompany Indebtedness among the Credit Parties or their respective Subsidiaries;




          (e) any Permitted Refinancing Indebtedness; and




          (f) any Indebtedness that is not otherwise permitted by this definition, provided that such
indebtedness would not cause a breach of the financial covenants set forth in subsections (m) and
(n) of Article VII;



provided that any of the foregoing Indebtedness raised to finance acquisitions of companies
or businesses shall only be Permitted Financial Indebtedness if the Parent is in pro forma covenant
compliance with the financial covenants set forth in subsections (m) and (n) of Article VII both
before the implementation of the corresponding transaction and after the implementation of the
transaction (using the latest financial statements closed on 30 June or 31 December and delivered
to the Administrative Agent and the latest financial statements available (coinciding in respect of
the period applicable with the Parent’s financial statements used for the calculation or those






12









 







immediately preceding, if the latter have not been closed) of the acquired entity, adding any
indebtedness incurred through the acquisition, where applicable.




          “Permitted Guarantees” means:




          (a) the endorsement of negotiable instruments in the ordinary course of trade;




          (b) any guarantee or indemnity for any Permitted Financial Indebtedness;




          (c) any unsecured guarantee granted in regard to any property leased or licensed by any member
of the Group;




          (d) any guarantee of obligations of any Borrower or Subsidiary to the extent such obligations
are permitted hereunder;




          (e) any guarantee given in order to comply with the Parent’s obligations as an entity listed
in a stock exchange in the United States of America;




          (f) any guarantee of obligations of any Obligor (as defined in the Parent Credit Agreement) to
the extent such obligations are permitted under the Parent Credit Agreement;




          (g) any guarantee of obligations of members of the Group who are not Obligors (as such term is
defined in the Parent Credit Agreement), other than the Borrowers and any Subsidiaries; provided
that such obligations when aggregated with Indebtedness incurred by the members of the Group who
are not Obligors do not exceed € 40,000,000 (or its equivalent in another currency or currencies)
(without double counting);




          (h) any guarantee granted by a Credit Party or Subsidiary in the ordinary course of business,
including to secure the performance of bids, tenders, trade contracts, leases, statutory
obligations, and as security for surety and appeal bonds, bid, performance, advance payment,
warranty and other bonds and bank guarantees and other obligations of a like nature, in each case
in the ordinary course of business; and




          (i) any other guarantee existing on the date of this Agreement and any guarantee replacing any
such guarantee.




          “Permitted Investments” means:




          (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America, Canada or any member of the European
Union (or by any agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America, Canada or any member of the European Union), in each case
maturing within one year from the date of acquisition thereof;




          (b) investments in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or
from Moody’s;







13









 








          (c) investments in certificates of deposit, banker’s acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;




          (d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution satisfying
the criteria described in clause (c) above;




          (e) money market funds that (i) comply with the criteria set forth in Securities and Exchange
Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by
Moody’s and (iii) have portfolio assets of at least $5,000,000,000; and




          (f) any acquisition by a Borrower or a Subsidiary of an entity (by means of acquiring its
total share capital or a controlling stake) or business carried on as a going concern, only if:




          (i) in the event the equity value of an acquired company or the value of the business acquired
is less than or equal to € 50,000,000, the financial ratios are met as established in subsections
(m) and (n) of Article VII based on a pro forma calculation both before the acquisition and after
the same (using to such end the latest financial statements of Parent, closed on 30 June or 31
December, incorporating, where applicable, the acquisition debt and the latest financial statements
available in relation to the company or business acquired); or




          (ii) in the event the equity value of an acquired company or the value of the business
acquired is greater than € 50,000,000:




          a. the financial ratios are met as established in subsections (m) and (n) of Article VII based
on a pro forma calculation both before the acquisition and after the same (using to such end the
latest financial statements of Parent, closed on 30 June or 31 December, incorporating, where
applicable, the acquisition debt and the latest financial statements available in relation to the
company or business acquired); and




          b. the company or business acquired has a positive EBITDA; and




          c. the equity value of the acquired company or the value of the business acquired is less than
8x its latest audited EBITDA.




          (g) loans or advances made by any Borrower, DTN or any Subsidiary to any Person other than a
Credit Party; provided that the aggregate principal amount of all such loans and advances
outstanding at any time shall not exceed $€ 20,000,000




          “Permitted Refinancing Indebtedness” means any Indebtedness issued or incurred in
exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease
or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous
refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (a)
the






14









 







principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so
Refinanced (plus unpaid accrued interest and premium thereon and underwriting discounts, fees,
commissions and expenses) and (b) the average life to maturity of such Permitted Refinancing
Indebtedness is greater than or equal to that of the Indebtedness being Refinanced.




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




          “Pesos” refers to lawful money of the United Mexican States.




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




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




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




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




          “Required Lenders” means, at any time, at least two Lenders collectively holding more
than 50% of the sum of (i) the aggregate outstanding amount of the Term Loans and (ii) the
aggregate Revolving Commitments then in effect or, if the Revolving Commitments have been
terminated, the aggregate Revolving Credit Exposure then outstanding; provided, however, if at any
time there is only one Lender hereunder, then such Lender constitutes “Required Lenders.”




          “Revolving Commitment” means, with respect to each Revolving Lender, the commitment of
such Revolving Lender to make Revolving Loans expressed as an amount representing the maximum
aggregate amount of such Revolving Lender’s Revolving Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial
amount of each Revolving Lender’s Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as
applicable. The initial aggregate amount of the Revolving Commitments is $20,000,000.




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







15









 








          “Revolving Lender” means a Lender with a Revolving Commitment or Revolving Credit
Exposure.




          “Revolving Loan” means a Loan made by the Revolving Lenders to any Borrower pursuant
to Section 2.01(a) of this Agreement.




          “Revolving Maturity Date” means October 12, 2011.




          “S&P” means Standard & Poor’s.




          “Solvent” means, with respect to any Person, that as of the date of determination (i)
the fair market value of the property of such Person is (A) greater than the total liabilities
(including contingent liabilities) of such Person, and (B) not less than the amount that will be
required to pay the probable liabilities on such Person’s debts as they come due, considering all
financing alternatives and potential asset sales reasonably available to such Person; (ii) such
Person’s capital is not unreasonably small in relation to its business or any contemplated or
undertaken transaction; and (iii) such Person does not intend to incur, or believe (nor should it
reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become
due. For purposes of this definition, the amount of any contingent liability at any time shall be
computed as the amount that, in light of all of the facts and circumstances existing at such time,
represents the amount that would reasonably be expected to become an actual or matured liability.




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




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







16









 








          “Subsidiary” means any subsidiary of any Borrower, except as the context may otherwise
require.




          “Substantial Portion” means, with respect to the property of any Borrower and its
Subsidiaries, property which represents more than 20% of the consolidated assets of such Borrower
and its Subsidiaries as would be shown in the consolidated financial statements of such Borrower
and its Subsidiaries as at the beginning of the twelve-month period ending with the last day of the
month preceding the month in which such determination is made.




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




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




          “Term Commitment” means, as to any Term Lender, the obligation, if any, of such Term
Lender to make a Term Loan in a principal amount not to exceed the amount set forth under the
heading “Term Commitment” opposite such Term Lender’s name on Schedule 2.01. The aggregate amount
of the Term Commitments is $22,000,000 on the Effective Date.




          “Term Lender” means a Lender with a Term Commitment or an outstanding Term Loan.




          “Term Loan” means a Loan made by the Term Lenders to the US Borrower pursuant to
Section 2.01(b) of this Agreement.




          “Term Maturity Date” means October 12, 2013.




          “Transactions” means the execution, delivery and performance by the Borrowers of this
Agreement, the borrowing of Loans and the use of the proceeds thereof.




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




          “US Borrower” means Telvent USA Corporation, a Maryland corporation.




          “Wholly-Owned Subsidiary” of a Person means (a) any subsidiary all of the outstanding
voting securities of which shall at the time be owned or controlled, directly or indirectly, by
such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or
more Wholly-Owned Subsidiaries of such Person, or (b) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the






17









 







ownership interests having ordinary voting power of which shall at the time be so owned or
controlled (other than in the case of Foreign Subsidiaries, director’s qualifying shares and/or
other nominal amounts of shares required to be held by Persons other than any Borrower and its
Subsidiaries under applicable law).




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




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




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




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







18









 








          SECTION 1.05. Foreign Currency Calculations. (a) For purposes of determining the
Dollar Equivalent of any Loan denominated in Pesos or any related amount, the Administrative Agent
shall determine the Exchange Rate as of the applicable Exchange Rate Date with respect to Pesos in
which any requested or outstanding Loan is denominated and shall apply such Exchange Rates to
determine such amount (in each case after giving effect to any Loan to be made or repaid on or
prior to the applicable date for such calculation).




          (b) For purposes of any determination hereunder, all amounts incurred, outstanding or proposed
to be incurred or outstanding in currencies other than Dollars shall be translated into Dollars at
the appropriate currency Exchange Rate; provided that no Default or Event of Default shall arise as
a result of any limitation set forth in Dollars in Section 6.02 being exceeded solely as a result
of changes in Exchange Rates from those rates applicable at the time or times Indebtedness or Liens
were initially consummated in reliance on the exceptions under such Sections. For purposes of any
determination under Section 6.03, the amount of each investment, asset disposition or other
applicable transaction denominated in a currency other than Dollars shall be translated into
Dollars at the applicable Exchange Rate. Such Exchange Rates shall be determined in good faith by
the Borrowers.




ARTICLE II




The Credits



          SECTION 2.01. Commitments.




          (a) Subject to the terms and conditions set forth herein, each Revolving Lender agrees to make
Revolving Loans denominated in Dollars and Pesos (in the case of the Canadian Borrower) and Dollars
only (in the case of the US Borrower) to the Borrowers from time to time during the Availability
Period in an aggregate principal amount that will not result in the Dollar Equivalent of (a) such
Revolving Lender’s Revolving Credit Exposure exceeding such Revolving Lender’s Revolving Commitment
or (b) the sum of the total Revolving Credit Exposures exceeding the total Revolving Commitments.
Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers
may borrow, prepay and reborrow Revolving Loans.




          (b) Subject to the terms and conditions set forth herein, each Term Lender agrees to make a
Term Loan denominated in Dollars to the US Borrower on the Effective Date in a principal amount
equal to its Term Commitment. Once repaid Term Loans may not be reborrowed.




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







19









 








          (b) Subject to Section 2.12, (i) each Loan denominated in Dollars shall be a ABR Loan or a
Eurocurrency Loan as the Borrowers may request in accordance herewith and (ii) each Loan
denominated in Pesos shall be a Eurocurrency Loan. Each Lender at its option may make any
Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the obligation of the
Borrowers to repay such Loan in accordance with the terms of this Agreement.




          (c) At the commencement of each Interest Period for any Eurocurrency Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $100,000 and not less than
$1,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $100,000 and not less than $500,000; provided that a
ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the
Revolving Commitment. Borrowings of more than one Type may be outstanding at the same time;
provided that there shall not at any time be more than a total of 6 Eurocurrency Borrowings
outstanding. Notwithstanding the foregoing, Borrowings which are denominated in Pesos may be made
in amounts and increments in Pesos satisfactory to the Revolving Lenders.




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




          SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing
the Applicable Borrower shall notify the Administrative Agent at the Applicable Lending Office of
such request by telephone (a) in the case of a Eurocurrency Revolving Borrowing, not later than
11:00 a.m., Local Time, two Business Days before the date of the proposed Revolving Borrowing or
(b) in the case of a ABR Revolving Borrowing, not later than 11:00 a.m., Local Time, on the date of
the proposed Revolving Borrowing. Each such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in substantially the form attached hereto as Exhibit B and signed by the
Applicable Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:





     (i) The identity of the Applicable Borrower;




     (ii) the amount of the requested Revolving Borrowing;




     (iii) the currency (which may be Dollars or Pesos, as applicable) in which such
Revolving Borrowing is to be denominated;




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




     (v) in the case of a Revolving Borrowing denominated in Dollars, whether such Revolving
Borrowing is to be a ABR Borrowing or a Eurocurrency Borrowing;



20









 






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




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


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




          SECTION 2.04. Request for Term Loan Borrowing. The US Borrower hereby requests the
Term Loan be made to the US Borrower as an Eurocurrency Loan with an Interest Period of 3 months to
be disbursed to an account or accounts separately identified to the Administrative Agent.




          SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, Local Time, to the account of the Administrative Agent most recently designated by it
for such purpose by notice to the Lenders. The Administrative Agent will make such Loans available
to the Applicable Borrower by promptly sending a wire transfer of the amounts so received, in like
funds, to an account of the Applicable Borrower designated by the Applicable Borrower pursuant to
Section 2.04 or in the applicable Borrowing Request.




          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Applicable Borrower a corresponding amount.
In such event, if a Lender has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and the Applicable Borrower severally agree to
pay to the Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available to the Applicable
Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in
the case of the Applicable Borrower, the interest rate applicable to ABR Loans. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing. Nothing in this Section 2.05(b) shall be deemed to relieve any Lender
from its obligation to fulfill its Commitments hereunder or to prejudice any rights that any
Borrower may have against any Lender as a result of any default by such Lender hereunder.







21









 








          SECTION 2.06. Interest Elections. (a) Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Applicable
Borrower may elect to convert such Borrowing to a different Type, in the case of Borrowings
denominated in Dollars, or to continue such Borrowing and, in the case of a Eurocurrency Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The Borrowers may elect
different options with respect to different portions of an affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a separate Loan.




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




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





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




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




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




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


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




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







22









 








          (e) If the Borrowers fail to deliver a timely Interest Election Request with respect to a
Eurocurrency Borrowing prior to the end of the Interest Period applicable thereto, then, unless
such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to a ABR Borrowing (unless such Borrowing is denominated in Pesos, in which case
such Borrowing shall be continued as a Eurocurrency Borrowing with an Interest Period of one
month’s duration commencing on the last day of such Interest Period). Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrowers, then, so long as an Event
of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a
Eurocurrency Borrowing, (ii) unless repaid, each Eurocurrency Borrowing denominated in Dollars
shall be converted to a ABR Borrowing at the end of the Interest Period applicable thereto and
(iii) unless repaid, each Eurocurrency Revolving Borrowing denominated in Pesos shall be continued
as a Eurocurrency Revolving Borrowing with an Interest Period of one month’s duration.




          SECTION 2.07. Termination and Reduction of Revolving Commitments. (a) Unless
previously terminated, the Revolving Commitments shall terminate on the Revolving Maturity Date.




          (b) The Borrowers may at any time terminate, or from time to time reduce, the Revolving
Commitments without premium or penalty (except as provided in Section 2.14); provided that
(i) each reduction of the Revolving Commitments shall be in an amount that is an integral multiple
of $1,000,000 and not less than $5,000,000 and (ii) the Borrowers shall not terminate or reduce the
Revolving Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.09, the Revolving Credit Exposure would exceed the total Revolving
Commitments.




          (c) The Borrowers shall notify the Administrative Agent of any election to terminate or reduce
the Revolving Commitments under paragraph (b) of this Section at least two Business Days prior to
the effective date of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrowers pursuant to this Section
shall be irrevocable. Any termination or reduction of the Revolving Commitments shall be
permanent. Each reduction of the Commitments shall be made ratably among the Lenders in accordance
with their respective Revolving Commitments.




          SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of the Revolving
Lenders the then unpaid principal amount of the Revolving Loans on the Revolving Maturity Date.
The US Borrower hereby unconditionally promises to pay to the Administrative Agent for the account
of the Term Lenders the then unpaid principal amount of the Term Loans in the amounts and on the
last Business Day of each calendar quarter ending on the dates listed below and on the Term
Maturity Date:




	 	 	 	 	 
	Payment Date	 	Amount
	September 30, 2011

	 	$	5,000,000	 
	December 31, 2011

	 	$	1,250,000	 






23









 






	 	 	 	 	 
	Payment Date	 	Amount
	March 31, 2012

	 	$	1,250,000	 
	June 30, 2012

	 	$	1,250,000	 
	September 30, 2012

	 	$	1,250,000	 
	December 31, 2012

	 	$	1,250,000	 
	March 31, 2013

	 	$	1,250,000	 
	June 30, 2013

	 	$	1,250,000	 
	September 30, 2013

	 	$	1,250,000	 
	Term Maturity Date

	 	Aggregate unpaid Term Loans







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




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




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




          (e) Any Lender may request that any Loan made by it be evidenced by a promissory note. In
such event, the Applicable Borrower shall prepare, execute and deliver to such Lender a promissory
note payable to the order of such Lender substantially in the form of Exhibit C hereto (in the case
of a Term Loan) or Exhibit D hereto (in the case of a Revolving Loan). Thereafter, the Loan
evidenced by such promissory note and interest thereon shall at all times be represented by a
promissory note in such form payable to the order of the payee named therein.




          (f) If at any time the aggregate Revolving Credit Exposures exceeds the total Revolving
Commitments, the Borrowers shall immediately prepay the Revolving Loans in the amount of such
excess.




          (g) The Administrative Agent will determine the Dollar Equivalent of each Revolving Loan on
each Exchange Rate Date. If at any time the sum of such amounts exceeds 105% of the total Revolving
Commitments, the Borrowers shall immediately prepay the Revolving Loans in the amount of such
excess.




          SECTION 2.09. Prepayment of Loans. (a) The Borrowers shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part without premium or






24









 







penalty (except as described in Section 2.14), subject to prior notice in accordance with
paragraph (b) of this Section.




          (b) The Applicable Borrower shall notify the Administrative Agent by telephone (confirmed by
telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Borrowing,
not later than 11:00 a.m., Local Time, two Business Days before the date of prepayment or (ii) in
the case of prepayment of a ABR Borrowing, not later than 11:00 a.m., Local Time, on the date of
prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid. Each partial prepayment of
any Borrowing shall be in an amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in such prepaid Borrowing. Prepayments shall be accompanied
by accrued interest to the extent required by Section 2.11.




          SECTION 2.10. Fees. The Borrowers agree to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon between the
Borrowers and the Administrative Agent.




          SECTION 2.11. Interest. (a) The Loans comprising each ABR Borrowing shall bear
interest at the Alternate Base Rate plus the Applicable Rate.




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




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




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




          (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365






25









 







days (or 366 days in a leap year), and in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). The applicable Alternate Base
Rate or Adjusted Eurocurrency Rate shall be determined by the Administrative Agent in accordance
with the definitions of those terms in Section 1.01, and such determination shall be conclusive
absent manifest error.




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





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




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


then the Administrative Agent shall give notice thereof to the Borrowers and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrowers and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective, (ii) such
Borrowing shall be converted to or continued as of the last day of the Interest Period applicable
thereto (A) if such Borrowing is denominated in Dollars, as a ABR Borrowing or (B) if such
Borrowing is denominated in Pesos, as a Borrowing in respect of which the rate to apply is an
interest rate to include (1) the Applicable Rate for Eurocurrency Borrowings and (2) the rate which
expresses as a percentage rate per annum the cost to the Lenders of funding the applicable Loans
from whatever source it may reasonably select, and (iii) if any Borrowing Request requests a
Eurocurrency Borrowing, such Borrowing shall be made as a ABR Borrowing (if such Borrowing is
requested to be made in Dollars) or shall be made as a Borrowing bearing interest at the rate
described under (ii)(B) above.




          SECTION 2.13. Increased Costs. (a) If the effect of any Change in Law shall:





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




     (ii) impose on any Lender or the London interbank market any other condition affecting
this Agreement or Eurocurrency Loans made by such Lender;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan) or to
reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrowers will pay to such Lender such additional






26









 







amount or amounts as will compensate such Lender for such additional costs incurred or reduction
suffered.




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




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




          (d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the
Borrowers shall not be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 30 days prior to the date that such Lender notifies the
Borrowers of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s intention to claim compensation therefor.




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






27









 







Borrowers and shall be conclusive absent manifest error. The Borrowers shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt thereof.




          SECTION 2.15. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrowers hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrowers shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or any Lender (as the case may
be) receives an amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrowers shall make such deductions and (iii) the Borrowers shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law.




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




          (c) The Borrowers shall indemnify the Administrative Agent and each Lender, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent or such Lender, as the case may be, on or with respect to any payment by
or on account of any obligation of the Borrowers hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto (other than
any such penalties, interest or expenses paid or payable as a result of the failure of such Lender
to comply with applicable laws), whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as
to the amount of such payment or liability delivered to the Borrowers by a Lender or by the
Administrative Agent on its on behalf or on behalf of a Lender shall be conclusive absent manifest
error.




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




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




          (f) If the Administrative Agent or a Lender determines, in its sole discretion and in good
faith, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrowers or with respect to which the Borrowers have paid additional






28









 







amounts pursuant to this Section 2.15, it shall pay over such refund to the Borrowers (but
only to the extent of indemnity payments made, or additional amounts paid, by the Borrowers under
this Section 2.15 with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such refund); provided,
that the Borrowers, upon the request of the Administrative Agent or such Lender, agree to repay the
amount paid over to the Borrowers (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such Governmental
Authority. This Section shall not be construed to require the Administrative Agent or any Lender to
make available its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrowers or any other Person.




          SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The
Borrowers shall make each payment required to be made by them hereunder (whether of principal,
interest, fees, or of amounts payable under Section 2.13, 2.14 or 2.15, or otherwise) prior to
12:00 noon, Local Time, on the date when due, in immediately available funds, without set off or
counterclaim. Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the Administrative
Agent at its offices at 10 South Dearborn, Floor 19, Chicago, Illinois 60603. The Administrative
Agent shall distribute any such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt therefor. If any payment hereunder shall be due
on a day that is not a Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments (other than of principal) hereunder shall be made
in Dollars. All payments of the principal amount of any Loan hereunder shall be made in the
currency in which such Loan was made.




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




          (c) To effectuate any payment due from it under this Agreement or the other Credit Documents,
the US Borrower hereby authorizes the Administrative Agent to initiate debit entries to its Account
Number 934753864 at the Administrative Agent and to debit the same to such account. This
authorization to initiate debit entries shall remain in full force and effect until the
Administrative Agent has received written notification of its termination in such time and in such
manner as to afford the Administrative Agent a reasonable opportunity to act on it. The US
Borrower represents that it is and will be the owner of all funds in such account. The US Borrower
acknowledges: (1) that such debit entries may cause an overdraft of such account which may result
in the Administrative Agent’s refusal to honor items drawn on such account






29









 







until adequate deposits are made to such account; (2) that the Administrative Agent is under
no duty or obligation to initiate any debit entry for any purpose; and (3) that if a debit is not
made because the above-referenced account does not have a sufficient available balance, or
otherwise, the payment may be late or past due.




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




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




          (f) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(b), 2.16(d) or 9.03(c), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully paid.




          SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.13, or if the Borrowers are required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender






30









 







pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.13 or 2.15, as the case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.




          (b) If any Lender requests compensation under Section 2.13, or if the Borrowers are required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.15, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all its interests,
rights and obligations under this Agreement to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the
Borrowers shall have received the prior written consent of the Administrative Agent, which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrowers (in the case of all other amounts) and (iii) in the
case of any such assignment resulting from a claim for compensation under Section 2.13 or payments
required to be made pursuant to Section 2.15, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrowers to require such assignment and delegation cease to apply.




ARTICLE III




Representations and Warranties



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




          SECTION 3.01. Organization; Powers. Each of the Credit Parties and its Subsidiaries
is duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization to the extent applicable, has all requisite power and authority to carry on its
business as now conducted and, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, is qualified to do
business in, and is in good standing (to the extent applicable) in, every jurisdiction where such
qualification is required.




          SECTION 3.02. Authorization; Enforceability. The Transactions are within each of the
Credit Parties’ corporate powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. Each Credit Document has been duly executed and






31









 







delivered by each Credit Party party thereto and constitutes a legal, valid and binding
obligation of each such Credit Party, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.




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




          SECTION 3.04. Financial Condition; No Material Adverse Effect. (a) The Borrowers
have heretofore furnished to the Administrative Agent the Parent’s, DTN’s and the Canadian
Borrower’s consolidated balance sheet and statements of income, stockholders equity and cash flows
(i) as of and for the fiscal year ended December 31, 2009, reported on by Deloitte and Touche,
independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the
fiscal year ended March 31, 2010, certified by the applicable entity’s chief financial officer. In
the case of the U.S. Borrower, the Borrowers have heretofore furnished to the Administrative Agent
such financial statements for each of the corporations that were merged into the U.S. Borrower on
April 1 and June 30, 2010. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Parent and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year end
audit adjustments and the absence of footnotes in the case of the statements referred to in clause
(ii) above.




          (b) Since December 31, 2009, no event, change, development, condition or circumstance has
occurred which, individually or in the aggregate (with any other events, changes, developments,
conditions or circumstances) has had or would reasonably be expected to have a Material Adverse
Effect.




          SECTION 3.05. Properties. (a) Each Credit Party and each of its Subsidiaries has
good title to, or valid leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended purposes.




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







32









 








          SECTION 3.06. Litigation and Environmental Matters. (a) There are no actions, suits
or proceedings by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of any Credit Party, threatened against or affecting any Credit Party or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect or (ii) that involve this Agreement or the Transactions.




          (b) Except with respect to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither any Credit Party nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.




          SECTION 3.07. Compliance with Laws and Agreements. Each Credit Party and each of its
Subsidiaries is in compliance with (i) the charter, by-laws, memorandum or articles of association
or other organizational documents applicable to it, (ii) all laws, regulations and orders of any
Governmental Authority applicable to it or its property and (iii) all indentures, agreements and
other instruments binding upon it or its property, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.




          SECTION 3.08. Investment Company Status. Neither any Credit Party nor any of its
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.




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




          SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the
most recent financial statements reflecting such amounts, exceed by more than $5,000,000 the fair
market value of the assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $5,000,000 the fair market value of the
assets of all such underfunded Plans.







33









 








          SECTION 3.11. Foreign Pension Plan. Each Foreign Pension Plan has been maintained in
substantial compliance with its terms and in substantial compliance with the requirements of any
and all applicable laws, statutes, rules, regulations and orders (including all funding
requirements and the respective requirements of the governing documents for each such Foreign
Pension Plan) and has been maintained, where required, in good standing with applicable regulatory
authorities. All contributions required to be made with respect to a Foreign Pension Plan have
been timely made. Neither any Credit Party nor any Subsidiary has incurred any material obligation
in connection with the termination of or withdrawal from any Foreign Pension Plan. The present
value of the accrued benefit liabilities (whether or not vested) under each Foreign Pension Plan,
determined as of the end of the Parent’s most recently ended fiscal year on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the current value of the assets of such
Foreign Pension Plan allocable to such benefit liabilities. No actions or proceedings have been
taken or instituted to terminate or wind-up a Foreign Pension Plan.




          SECTION 3.12. Solvency. Each of the Credit Parties is and, upon the making of any
Loan will be, Solvent.




          SECTION 3.13. Disclosure. The Borrowers have disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which they or any of their
Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. None of the other reports,
financial statements, certificates or other information furnished by or on behalf of the Borrowers
to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, the Borrowers represent
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time.




          For the avoidance of doubt, the representations and warranties contained in this Article III
are made solely by the Borrowers.




ARTICLE IV




Conditions



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





     (a) The Administrative Agent (or its counsel) shall have received from each party to
the Credit Documents either (i) a counterpart of each Credit Document to which such party is
a party signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission or PDF copies sent



34









 






by email of a signed signature page of this Agreement) that such party has signed a
counterpart of each such agreement.




     (b) The Administrative Agent shall have received one or more favorable written opinions
dated the Effective Date of counsel for the Credit Parties, and covering such matters
relating to the Credit Parties, this Agreement or the Transactions as the Administrative
Agent shall reasonably request. The Credit Parties hereby request applicable counsel to
deliver such opinion.




     (c) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing (in their respective jurisdictions of incorporation) of the
Credit Parties, the authorization of the Transactions and any other legal matters relating
to the Credit Parties, this Agreement or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.




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




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



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





     (a) The representations and warranties of the Credit Parties set forth in the Credit
Documents shall be true and correct on and as of the date of such Borrowing.




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




     (c) The Lenders shall have received such other documentation as it shall reasonably
request.


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




ARTICLE V




Affirmative Covenants



          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full, the Borrowers covenant and
agree with the Lenders that:







35









 








          SECTION 5.01. Financial Statements; Ratings Change and Other Information. The
Borrowers will furnish to the Administrative Agent:





     (a) within 120 days after the end of each fiscal year of each of the Parent, DTN and
each Borrower, each such entity’s audited consolidated balance sheet and related statements
of operations, stockholders’ equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous fiscal year, all
reported on by Deloitte and Touche or other independent public accountants of recognized
national standing (without a “going concern” or like qualification or exception and without
any qualification or exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material respects the financial
condition and results of operations of each such entity and its consolidated Subsidiaries on
a consolidated basis in accordance with GAAP consistently applied;




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




     (c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer on behalf of each Borrower (i) certifying as to
whether a Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with Sections 7(m) and (n)
and (iii) stating whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section 3.04 and, if any
such change has occurred, specifying the effect of such change on the financial statements
accompanying such certificate; and




     (d) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Credit Parties or any
Subsidiary, or compliance with the terms of the Credit Documents, as the Administrative
Agent or any Lender may reasonably request.



          SECTION 5.02. Notices of Material Events. The Borrowers will furnish to the
Administrative Agent and each Lender prompt written notice of the following:





     (a) the occurrence of any Default;



36









 






     (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting any Credit Party or any Subsidiary
thereof that, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;




     (c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability of any
Borrower and its Subsidiaries in an aggregate amount exceeding $5,000,000; and




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


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




          SECTION 5.03. Existence; Conduct of Business. Each Borrower will, and will cause
each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.02.




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




          SECTION 5.05. Maintenance of Properties; Insurance. Each Borrower will, and will
cause each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of
its business in good working order and condition, ordinary wear and tear excepted, and (b)
maintain, with financially sound and reputable insurance companies, insurance in such amounts and
against such risks as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.




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







37









 








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




          SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used only for
working capital and general corporate purposes, including but not limited to Permitted Investments.
No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose
that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.



Solely for purposes of determining compliance with the affirmative covenants in Sections 5.03
through 5.07 above, each reference to “Borrower” or “Borrowers” in such Sections (or the defined
terms used therein) shall be deemed to include DTN.




ARTICLE VI




Negative Covenants



          Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full, the Borrowers covenant and agree with
the Lenders that:




          SECTION 6.01. Liens. The Borrowers will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by them, or assign or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof, except:





     (a) Permitted Encumbrances;




     (b) any Lien on any property or asset of the Borrowers or any Subsidiary existing on
the date hereof and set forth in Schedule 6.01; provided that (i) such Lien shall
not apply to any other property or asset of the Borrowers or any Subsidiary and (ii) such
Lien shall secure only those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding principal amount
thereof;




     (c) any Lien existing on any property or asset prior to the acquisition thereof by any
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary , as the case may be, (ii) such Lien
shall not apply to any other property or assets of any Borrower or any Subsidiary and (iii)
such Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be



38









 






and extensions, renewals and replacements thereof that do not increase the outstanding
principal amount thereof;




     (d) Liens on fixed or capital assets acquired, constructed or improved by the Borrowers
or any Subsidiary; provided that (i) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (ii) the Indebtedness secured thereby does
not exceed 100% of the cost of acquiring, constructing or improving such fixed or capital
assets and (iii) such security interests shall not apply to any other property or assets of
the Borrowers or any Subsidiary;




     (e) any lien, encumbrance or assignment of accounts receivable granted by a Borrower as
security in connection with any factoring programs, including without limitation the
factoring agreement made by each of the Borrowers with HSBC Bank Canada;




     (f) any Lien existing on any property or asset of any Person that becomes a Subsidiary
after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i)
such Lien is not created in contemplation of or in connection with such Person becoming a
Subsidiary, (ii) such Lien shall not apply to any other property or assets of any Credit
Party and (iii) such Lien shall secure only those obligations which it secures on the date
such Person becomes a Subsidiary;




     (g) any Lien arising as a consequence of any Finance Lease (as defined in the Parent
Credit Agreement) permitted under the Parent Credit Agreement;




     (h) any Lien arising over a Non-Recourse Asset;




     (i) any Lien over any rental deposits in respect of any property leased or licensed by
a member of the Group; and




     (j) Liens not otherwise described in this Section 6.01, so long as the aggregate amount
of Indebtedness secured by all such Liens does not at any time exceed € 20,000,000.



          SECTION 6.02. Fundamental Changes; Asset Dispositions and Nature of Business. (a)
The Borrowers will not, and will not permit any Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it, or liquidate or
dissolve, except that if at the time thereof and immediately after giving effect thereto no Default
shall have occurred and be continuing (i) any Subsidiary may merge into any Borrower in a
transaction in which such Borrower is the surviving corporation, (ii) any Person may merge into any
Subsidiary in a transaction in which the surviving entity is a Subsidiary, (iii) DTN may merge into
the US Borrower in a transaction in which the US Borrower is the surviving corporation, (iv) any
Borrower may merge with or into any other Borrower and (v) any Subsidiary may liquidate or dissolve
if the Borrowers determine in good faith that such liquidation or dissolution is in the best
interests of the Borrowers and is not materially disadvantageous to the Lenders; provided
that any such merger involving a Person that is not






39









 







DTN or a Wholly-Owned Subsidiary immediately prior to such merger shall not be permitted
unless also permitted by Section 6.03.




          (b) The Borrowers will not, and will not permit any Subsidiary to, make any Asset Disposition
except for:





     (i) Asset Dispositions among the Borrowers and DTN,




     (ii) Asset Dispositions by Subsidiaries to any Borrower, DTN or any Subsidiary,




     (iii) Asset Dispositions expressly permitted by Sections 6.03, 6.05 or 6.06,




     (iv) other Asset Dispositions of property that, together with all other property of any
Borrower and its Subsidiaries previously leased, sold or disposed of in Asset Dispositions
made pursuant to Section 6.02(b)(iii) during the twelve-month period ending with the month
in which any such lease, sale or other disposition occurs, do not constitute a Substantial
Portion of the property of such Borrower and its Subsidiaries, and




     (v) any assignment of accounts receivable by a Borrower in connection with any
factoring programs, including without limitation the factoring agreement made by each of the
Borrowers with HSBC Bank Canada.



          (c) The Borrowers will not, and will not permit any Subsidiary to, make any material change in
the nature or conduct of its business as carried on as of the Effective Date.




          SECTION 6.03. Investments, Loans, Advances, Guarantees and Acquisitions. The
Borrowers will not, and will not permit any of the Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to
such merger) any capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or
any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business unit, except:




          (a) Permitted Investments;




          (b) investments by the Borrowers in the capital stock of Subsidiaries existing on the
Effective Date;




          (c) Permitted Guarantees;




          (d) loans or advances made by any Borrower or Subsidiary to Parent or any subsidiary of the
Parent organized in Canada, the United States of America or Mexico which are not otherwise
permitted by clause (e) of this Section 6.03; and




          (e) loans or advances made by any Borrower to any Subsidiary or Credit Party and made by any
Subsidiary to any Borrower or any other Subsidiary; provided that all such






40









 







loans are subordinated to the repayment of the Loans in a manner and pursuant to documentation
satisfactory to the Administrative Agent.




          SECTION 6.04. Swap Agreements. The Borrowers will not, and will not permit any of
the Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to
hedge or mitigate risks to which any Borrower or any Subsidiary has, or reasonably expects to have,
exposure (other than those in respect of Equity Interests of such Borrower or any of its
Subsidiaries), and (b) Swap Agreements entered into in order to effectively cap, collar or exchange
interest rates (from fixed to floating rates, from one floating rate to another floating rate or
otherwise) with respect to any interest-bearing liability or investment of any Borrower or any
Subsidiary.




          SECTION 6.05. Transactions with Affiliates. The Borrowers will not, and will not
permit any of the Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of their Affiliates, except (a) in the ordinary course of business at prices
and on terms and conditions not less favorable to such Borrower or such Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among
the Borrowers and/or their Subsidiaries not involving any other Affiliate, (c) performance under
any employment contract, collective bargaining agreement, employee benefit plan, related trust
agreement or similar arrangement in the ordinary course of business, (d) fees, compensation and
other benefits to, and customary indemnity and reimbursement provided on behalf of employees,
officers or consultants in the ordinary course of business, (e) the maintenance of benefit programs
or arrangements for employees in the ordinary course of business, (f) dividends and distributions
paid in accordance with their applicable organizational documents and (g) transactions permitted
pursuant to Section 6.03.




          SECTION 6.06. Restrictive Agreements. The Borrowers will not, and will not permit
any of the Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability
of any Subsidiary to pay dividends or other distributions with respect to any shares of its capital
stock or to make or repay loans or advances to the Borrowers or any other Subsidiary or to
Guarantee Indebtedness of the Borrowers or any other Subsidiary; provided that the
foregoing shall not apply to (i) restrictions and conditions imposed by law or by the Credit
Documents, (ii) restrictions and conditions existing on the date hereof identified on Schedule 6.06
(but shall apply to any amendment or modification expanding the scope of, any such restriction or
condition) and (iii) customary restrictions and conditions contained in agreements relating to
Permitted Financial Indebtedness or to the sale of a Subsidiary pending such sale, provided that
such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder.




          SECTION 6.07. Subordinated Indebtedness. (a) The Borrowers will not, and will not
permit any of their Subsidiaries to, borrow, incur, assume or become liable for any intercompany
Indebtedness unless repayment of such Indebtedness is subordinated to the Loans on substantially
the same terms provided in Section 6 of each Guaranty (including the terms regarding when repayment
is permitted) or on terms otherwise reasonably acceptable to the Administrative Agent.







41









 








          (b) The Borrowers will not, and will not permit any of their Subsidiaries to, repay any
Affiliate pursuant to any intercompany Indebtedness at any time in violation of the subordination
provisions required by clause (a) above.



Solely for purposes of determining compliance with the negative covenants in Sections 6.01 through
6.06 above, each reference to “Borrower” or “Borrowers” in such Sections (or the defined terms used
therein) shall be deemed to include DTN.




ARTICLE VII




Events of Default



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





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




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




     (c) any representation or warranty made or deemed made by or on behalf of the Borrowers
or any Subsidiary in or in connection with this Agreement or any other Credit Document or
any amendment or modification hereof or waiver hereunder or thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in connection
with this Agreement or any other Credit Document or any amendment or modification hereof or
waiver hereunder, shall prove to have been incorrect when made or deemed made;




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




     (e) any Credit Party shall fail to observe or perform any covenant, condition or
agreement contained in the Credit Documents that such Credit Party is required to observe or
perform (other than those specified in clause (a), (b) or (d) of this Article), and such
failure shall continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrowers, which notice may be given at the request of any
Lender;




     (f) any Credit Party shall fail to make any payment (whether of principal or interest
and regardless of amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable (giving effect to any applicable grace periods);



42









 






     (g) (i) any Material Indebtedness is not paid when due or within any originally
applicable grace period, unless it is being disputed in good faith by the corresponding
Borrower or Subsidiary in accordance with applicable legal means or does not give rise to a
cross default of any other Material Indebtedness or (ii) any “Event of Default” under and as
defined in the Parent Credit Agreement, the Ongoing Parent Credit Agreement or the 5.50%
Note Documents shall occur;




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




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




     (j) one or more final, non appealable judgments for the payment of money in an
aggregate amount in excess of € 15,000,000 to the extent not adequately covered by insurance,
shall be rendered against any Credit Party, any Subsidiary or any combination thereof and
the same shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed;




     (k) an ERISA Event or circumstance with respect to a Foreign Pension Plan shall have
occurred that, in the reasonable opinion of the Required Lenders, when taken together with
all other ERISA Events and such circumstances that have occurred, could reasonably be
expected to result in a Material Adverse Effect and such event or circumstance has not been
cured within thirty days after any Borrower knew or should have known thereof;




     (l) a Change in Control shall occur;




     (m) the Leverage Ratio shall exceed (i) 3.0 to 1.0 for the period of four fiscal
quarters ending on December 31, 2010, calculated as of such date or (ii) 2.75 to 1.0 for



43









 






any period of four fiscal quarters ending on June 30 or December 31 prior to the Term
Maturity Date, calculated as of the applicable fiscal quarter end;




     (n) the Interest Cover Ratio shall be less than 3.5 to 1.0 for any period of four
fiscal quarters ending on June 30 or December 31 prior to the Term Maturity Date, calculated
as of the applicable fiscal quarter end; or




     (o) any Guaranty or any provision thereof shall cease to be in full force and effect as
to any Guarantor, or such Guarantor or any Person acting for or on behalf of such Guarantor
shall deny or disaffirm such Guarantor’s obligations under such Guaranty;


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




ARTICLE VIII




The Administrative Agent



          Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.




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




          The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of






44









 







whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have
any duty to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrowers or any of their Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall
not be liable for any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the Borrowers or a Lender,
and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement,
(ii) the contents of any certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.




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




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




          Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the
Borrowers. Upon any such resignation, the Required Lenders shall have the






45









 







right, in consultation with the Borrowers, to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrowers to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them while it was acting as Administrative
Agent.




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




ARTICLE IX




Miscellaneous



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





     (i) if to the US Borrower, to it at 1390 Piccard Drive, Rockville, MD 20850, Attention
of Legal Department (Telecopy No. (301) 354-5567);




     (ii) if to the Canadian Borrower, to it at 1390 Piccard Drive, Rockville, MD 20850,
Attention of Legal Department (Telecopy No. (301) 354-5567);




     (iii) (iii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., 10 S.
Dearborn Floor 07, Chicago, Il. 60603-2003 Attention Jeffery Puro (Telecopy No. (888)
303-9732);



46









 






     (iv) if to the Administrative Agent for Eurocurrency Loans denominated in Pesos,
to JPMorgan Chase Bank, N.A., Toronto Branch, Attention: Ann Jewell (Telecopy No.
502-566-2742); and




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



          (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the Borrowers may, in
their discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications.




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




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




          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required
Lenders or by the Borrowers and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan, or any
interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.16(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written consent of each
Lender, (v) release any






47









 







Guarantor from its obligations under the Credit Documents or (vi) change any of the provisions
of this Section or the definition of “Required Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder, without the written consent of each Lender;
provided further that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent
of the Administrative Agent or the Issuing Bank, as the case may be.




          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrowers shall pay (i)
all reasonable out of pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent,
in connection with the syndication of the credit facilities provided for herein, preparation and
administration of this Agreement or any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and
(ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender, including the
fees, charges and disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made hereunder, including
all such out-of pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans.




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




          (c) To the extent that the Borrowers fail to pay any amount required to be paid by them to the
Administrative Agent under paragraph (a) or (b) of this Section, each Lender severally agrees to
pay to the Administrative Agent such Lender’s Applicable Percentage (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss,






48









 







claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such.




          (d) To the extent permitted by applicable law, no Borrower shall assert, and each Borrower
hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.




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




          SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby except that (i) the Borrowers may not assign or otherwise transfer any of
their rights or obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrowers without such consent shall be null and void) and
(ii) no Lender may at any time sell, assign or transfer one or more interests or participations in
all or any part of its rights and obligations under this Agreement and the other Credit Documents
to one or more purchasers whether or not related to any Lender except in accordance with this
Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted hereby,
Participants (to the extent provided in paragraph (c) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.




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





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




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




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




          (A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of
any Class, the amount of the Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the



49









 






Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each Borrower and the
Administrative Agent otherwise consent, provided that no such consent of the
Borrowers shall be required if an Event of Default has occurred and is continuing;




          (B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement, provided
that this clause shall not be construed to prohibit the assignment of a proportionate part
of all the assigning Lender’s rights and obligations in respect of one Class of Commitments
or Loans and provided further that Section 9.04(b)(ii)(B) shall not be construed to
prohibit assignment of a proportionate part of all the assigning Lender’s rights and
obligations in respect of one Class of Commitments or Loans.




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




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



          For the purposes of this Section 9.04(b), the term “Approved Fund” has the
following meaning:




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





     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.13, 2.14, 2.15 and 9.03).
Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.



50









 






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




     (v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register;
provided that if either the assigning Lender or the assignee shall have failed to
make any payment required to be made by it pursuant to Section 2.05(b), 2.16(d) or 9.03(c),
the Administrative Agent shall have no obligation to accept such Assignment and Assumption
and record the information therein in the Register unless and until such payment shall have
been made in full, together with all accrued interest thereon. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.



          (c) (i) Any Lender may, without the consent of the Borrowers or the Administrative Agent, sell
participations to one or more banks or other entities (a “Participant”) in all or a portion
of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrowers, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (c)(ii) of this Section, the Borrowers agree that each
Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.16(c) as though it were a Lender.







51









 









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



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




          SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Borrowers herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and so
long as the Commitments have not expired or terminated. The provisions of Sections 2.13, 2.14,
2.15 and 9.03 shall survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of
the Commitments or the termination of this Agreement or any provision hereof.




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







52









 








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




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




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




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




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




          (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. In addition, the Canadian Borrower hereby irrevocably
appoints the US Borrower as its agent for service of process in any action or proceeding relating
to the Credit Documents and agrees that any service upon the US Borrower






53









 







shall be as effective as if made upon it personally. Nothing in this Agreement will affect
the right of any party to this Agreement to serve process in any other manner permitted by law.




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




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




          SECTION 9.12. Confidentiality. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) to any assignee of or participant in, or any
prospective assignee of or participant in, any of its rights or obligations under this Agreement,
(g) with the consent of the Borrowers or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a non-confidential basis from a source other than the
Borrowers. For the purposes of this Section, “Information” means all information received
from the Borrowers relating to any Borrower or its business, other than any such information that
is available to the Administrative Agent or any Lender on a non-confidential basis prior to
disclosure by the Borrowers; provided that, in the case of information received from the
Borrowers after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.




          SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively






54









 







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




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




          SECTION 9.15. Conversion of Currencies. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder in one currency into
another currency, each party hereto agrees, to the fullest extent that it may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal banking procedures
in the relevant jurisdiction the first currency could be purchased with such other currency on the
Business Day immediately preceding the day on which final judgment is given.




          (b) The obligations of each Borrower in respect of any sum due to any party hereto or any
holder of the obligations owing hereunder (the “Applicable Creditor”) shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than the
currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be
discharged only to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement
Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less
than the sum originally due to the Applicable Creditor in the Agreement Currency, the Borrowers
agree, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Borrowers contained in this Section 9.15 shall
survive the termination of this Agreement and the payment of all other amounts owing hereunder




          SECTION 9.16. Interest Act (Canada). For the purposes of the Interest Act (Canada),
(i) whenever any interest or fee under this Agreement is calculated using a rate based on a year of
360 days or 365 days, as the case may be, the rate determined pursuant to such calculation, when
expressed as an annual rate, is equivalent to (x) the applicable rate based on a year of 360 days
or 365 days, as the case may be, (y) multiplied by the actual number of days in the calendar year
in which such annual rate is to be ascertained, and (z) divided by 360 or 365, as the case may be;
(ii) the principle of deemed reinvestment of interest does not apply to any






55









 







interest calculation under this Agreement; and (iii) the rates of interest stipulated in this
Agreement are intended to be nominal rates and not effective rates or yields.




[signature pages follow]




56









 








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




	 	 	 	 	 
	 	TELVENT CANADA LTD.,
as Canadian Borrower

 	 
	 	By:  	/s/ James J. Danley 	 
	 	 	Name:  	James J. Danley 	 
	 	 	Title:  	Finance and Treasury Manager 	 
	 
	 	By:  	/s/ Thomas Dilworth 	 
	 	 	Name:  	Thomas Dilworth 	 
	 	 	Title:  	CFO North America 	 
	 
	 	TELVENT USA CORPORATION,
as US Borrower

 	 
	 	By:  	/s/ James J. Danley 	 
	 	 	Name:  	James J. Danley 	 
	 	 	Title:  	Finance and Treasury Manager 	 
	 
	 	By:  	/s/ Thomas Dilworth 	 
	 	 	Name:  	Thomas Dilworth 	 
	 	 	Title:  	CFO North America 	 
	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as a Lender

 	 
	 	By:  	/s/ Jeffrey M. Puro 	 
	 	 	Name:  	Jeffrey M. Puro 	 
	 	 	Title:  	Officer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	FIFTH THIRD BANK, N.A., as a Lender

 	 
	 	By:  	/s/ Matthew Kuchta 	 
	 	 	Name:  	Matthew Kuchta 	 
	 	 	Title:  	AVP 	 
	 




 











 





Schedule 2.01




Commitments




	 	 	 	 	 	 	 	 	 
	 	 	Revolving	 	Term Loan
	Lender	 	Commitment	 	Commitment
	JPMorgan Chase Bank, N.A.
	 	$	20,000,000	 	 	$	12,000,000	 
	Fifth Third Bank, N.A.
	 	$	0	 	 	$	10,000,000	 
	 
	 	 	 	 	 	 	 	 
	TOTAL
	 	$	20,000,000	 	 	$	22,000,000	 






 









 






EXHIBIT A




FORM OF ASSIGNMENT AND ASSUMPTION



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




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




	 	 	 	 	 

	1.

	 	Assignor:
	 	                                                            
	 
	 	 	 	 
	2.

	 	Assignee:
	 	                                                            
	 

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

	 	Borrower(s):
	 	Telvent USA Corporation and Telvent Canada Ltd.






	4.	 	Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative agent under the Credit
Agreement
	 
	5.	 	Credit Agreement: The Credit Agreement dated as of November 3, 2010 among Telvent USA
Corporation and Telvent Canada Ltd., the Lenders parties thereto and JPMorgan Chase Bank,
N.A., as Administrative Agent.







 




			
	1	 	Select as applicable.




 









 











	6.	 	Assigned Interest:





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





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



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



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




	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





 




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




2









 









[Consented to and]3 Accepted:




JPMORGAN CHASE BANK, N.A., as

Administrative Agent




	 	 	 	 	 
	 	 	 
	By  	 	 	 
	 	Title: 	 	 
	 	 	 	 
	 
	[Consented to:]4



[NAME OF RELEVANT PARTY]

 	 	 
	By  	 	 	 
	 	Title: 	 	 
	 	 	 	 
	 





 




			
	3	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	4	 	To be added only if the consent of the
Borrowers and/or other parties is required by the terms of the Credit
Agreement.






3











 





ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




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




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




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






 









 








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











2









 








EXHIBIT B




NOTICE OF BORROWING



[Date]



JPMorgan Chase Bank, N.A.,

as Administrative Agent,

and the Lenders that are parties to

the Credit Agreement referred to below

[Applicable Lending Office]

Attention: [_____________]




Ladies and Gentlemen:




     The undersigned, [Telvent USA Corporation][Telvent Canada Ltd.] (the “Borrower”),
refers to the Credit Agreement, dated as of November 3, 2010, among the Borrower, [Telvent USA
Corporation][Telvent Canada Ltd.], various financial institutions and JPMorgan Chase Bank, N.A., as
Administrative Agent (as amended, modified or supplemented from time to time, the “Credit
Agreement”), and hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit
Agreement that the undersigned requests a Revolving Borrowing under the Credit Agreement, and in
that connection sets forth below the information relating to such Borrowing (the “Proposed
Borrowing”) as required by Section 2.03 of the Credit Agreement:




     (i) The Applicable Borrower is [Telvent USA Corporation] [Telvent Canada
Ltd.];




     (iii) the currency in which such Proposed Borrowing is to be denominated is
[Dollars][Pesos];




     (i) The aggregate amount of the Proposed Borrowing is $______.




     (ii) The Business Day of the Proposed Borrowing is _____, 20__.




     (v) in the case of a Proposed Borrowing denominated in Dollars, the Type of
Borrowing to be made in connection with the Proposed Borrowing is [ABR
Borrowing] [Eurodollar Borrowing];




     (iv) If applicable, the Interest Period for each Eurodollar Borrowing made
as part of the Proposed Borrowing is [1, 2 or 3 month[s]].




     (v) The Proposed Borrowing should be disbursed to the
following account:




     [__________________]

     [__________________]



     The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Borrowing:



 









 






     (A) the representations and warranties of the Credit Parties contained in each
of the Credit Documents are true and correct on and as of the date hereof; and




     (B) at the time of and immediately after giving effect to such Proposed
Borrowing, no Default shall have occurred or be continuing.



     Capitalized terms used but not defined herein shall have the meanings given to them in the
Credit Agreement.



	 	 	 	 	 
	 	Very truly yours,



[TELVENT USA CORPORATION]
[TELVENT CANADA LTD.]

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



2









 






	 	 	 	 	 



EXHIBIT C




FORM OF TERM NOTE



			
	 	 	 
	$__,000,000
	 	_________ __, 20__






     Telvent USA Corporation (the “Borrower”), promises to pay to the order of [_________] (the
“Lender”) the aggregate unpaid principal amount of the Term Loans made by the Lender to the
Borrower pursuant to Article II of the Agreement (as hereinafter defined), in immediately available
funds at the office of the Administrative Agent as provided in Section 2.16(a) of the Agreement,
together with interest on the unpaid principal amount hereof at the rates and on the dates set
forth in the Agreement. The Borrower shall pay any outstanding principal of and accrued and unpaid
interest on such Term Loans in full on the Term Maturity Date.



     The Lender shall, and is hereby authorized to, record on the schedule attached hereto, or to
otherwise record in accordance with its usual practice, the date and amount of each Loan made by
the Lender to the Borrower and the date and amount of each principal payment hereunder.



     This promissory note is issued pursuant to, and is entitled to the benefits of, the Credit
Agreement dated as of November 3, 2010 (which, as it may be amended, restated or modified and in
effect from time to time, is herein called the “Agreement”), among the Borrower, certain of its
affiliates, JPMorgan Chase Bank, N.A., as administrative agent and certain financial institutions,
including the Lender, to which Agreement reference is hereby made for a statement of the terms and
conditions governing this note, including the terms and conditions under which this note may be
prepaid or its maturity date accelerated. Capitalized terms used herein and not otherwise defined
herein are used with the meanings attributed to them in the Agreement.



     This Note is to be governed by and construed and enforced in accordance with the laws of the
State of New York.



[SIGNATURE PAGE FOLLOWS]





 









 








          IN WITNESS WHEREOF, the undersigned have executed this note by their duly authorized officers.




	 	 	 	 	 
	 	TELVENT USA CORPORATION

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



2









 






	 	 	 	 	 



SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL

TO

NOTE,

DATED November 3, 2010




	 	 	 	 	 	 	 	 	 
	 	 	Principal	 	Maturity	 	Principal	 	 
	 	 	Amount of	 	of Interest	 	Amount	 	Unpaid
	Date	 	Loan	 	Period	 	Paid	 	Balance
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





3









 






EXHIBIT D




FORM OF REVOLVING NOTE



			
	 	 	 
	$__,000,000
	 	_________ __, 20__






     [Telvent USA Corporation][Telvent Canada Ltd.], (the “Borrower”), promises to pay to the order
of [________] (the “Lender”) the aggregate unpaid principal amount of the Loans made by the Lender
to the Borrower pursuant to Article II of the Agreement (as hereinafter defined), in immediately
available funds at the office of the Administrative Agent as provided in Section 2.16(a) of the
Agreement, together with interest on the unpaid principal amount hereof at the rates and on the
dates set forth in the Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on such Revolving Loans in full on the Revolving Maturity Date.



     The Lender shall, and is hereby authorized to, record on the schedule attached hereto, or to
otherwise record in accordance with its usual practice, the date and amount of each Revolving Loan
made by the Lender to the Borrower and the date and amount of each principal payment hereunder.



     This promissory note is issued pursuant to, and is entitled to the benefits of, the Credit
Agreement dated as of November 3, 2010 (which, as it may be amended, restated or modified and in
effect from time to time, is herein called the “Agreement”), among the Borrower, certain of its
affiliates, JPMorgan Chase Bank, N.A., as administrative agent and certain financial institutions,
including the Lender, to which Agreement reference is hereby made for a statement of the terms and
conditions governing this note, including the terms and conditions under which this note may be
prepaid or its maturity date accelerated. Capitalized terms used herein and not otherwise defined
herein are used with the meanings attributed to them in the Agreement.



     This Note is to be governed by and construed and enforced in accordance with the laws of the
State of New York.



[SIGNATURE PAGE FOLLOWS]






 









 








          IN WITNESS WHEREOF, the undersigned have executed this note by their duly authorized officers.




	 	 	 	 	 
	 	[TELVENT USA CORPORATION]
[TELVENT CANADA LTD.]

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL

TO

NOTE,

DATED November 3, 2010




	 	 	 	 	 	 	 	 	 
	 	 	Principal	 	Maturity	 	Principal	 	 
	 	 	Amount of	 	of Interest	 	Amount	 	Unpaid
	Date	 	Loan	 	Period	 	Paid	 	Balance