Exhibit 10.1





Exhibit 10.1




Published CUSIP Number: 00077AAC9




CREDIT AGREEMENT




Dated as of November 30, 2010




among




ABM INDUSTRIES INCORPORATED

and

CERTAIN SUBSIDIARIES,

as Borrowers,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and L/C Issuer,




JP MORGAN CHASE BANK, N.A.,

as Syndication Agent,




RBS CITIZENS, N.A.,

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Co-Documentation Agents,




and




The Other Lenders Party Hereto




MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and

J.P. MORGAN SECURITIES LLC,

Joint Lead Arrangers and Joint Book Managers



 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	1.1 Defined Terms
	 	 	1	 
	1.2 Other Interpretive Provisions
	 	 	25	 
	1.3 Accounting Terms
	 	 	26	 
	1.4 Rounding
	 	 	26	 
	1.5 References to Agreements and Laws
	 	 	26	 
	1.6 Times of Day
	 	 	26	 
	1.7 Letter of Credit Amounts
	 	 	27	 
	1.8 Exchange Rates; Currency Equivalents
	 	 	27	 
	1.9 Change of Currency
	 	 	27	 
	 
	 	 	 	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	28	 
	 
	 	 	 	 
	2.1 Revolving Loans
	 	 	28	 
	2.2 Procedure for Borrowing, Conversion and Continuation of Revolving Loans
	 	 	28	 
	2.3 Letters of Credit
	 	 	30	 
	2.4 Swing Line Loans
	 	 	38	 
	2.5 Prepayments
	 	 	41	 
	2.6 Termination or Reduction of Commitments
	 	 	42	 
	2.7 Repayment of Loans
	 	 	42	 
	2.8 Interest
	 	 	42	 
	2.9 Fees
	 	 	43	 
	2.10 Computation of Interest and Fees
	 	 	44	 
	2.11 Evidence of Debt
	 	 	44	 
	2.12 Payments Generally
	 	 	45	 
	2.13 Sharing of Payments
	 	 	46	 
	2.14 Increase in Commitments
	 	 	47	 
	2.15 Designated Borrowers
	 	 	48	 
	2.16 Cash Collateral
	 	 	49	 
	2.17 Defaulting Lenders
	 	 	50	 






 


i









 





	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	52	 
	 
	 	 	 	 
	3.1 Taxes
	 	 	52	 
	3.2 Illegality
	 	 	56	 
	3.3 Inability to Determine Rates
	 	 	57	 
	3.4 Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	57	 
	3.5 Compensation for Losses
	 	 	60	 
	3.6 Mitigation Obligation; Replacement of Lenders
	 	 	60	 
	3.7 Survival
	 	 	61	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	61	 
	 
	 	 	 	 
	4.1 Conditions of Initial Credit Extension
	 	 	61	 
	4.2 Conditions to all Credit Extensions
	 	 	62	 
	 
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	 	 	63	 
	 
	 	 	 	 
	5.1 Existence, Qualification and Power; Compliance with Laws
	 	 	63	 
	5.2 Authorization; No Contravention
	 	 	63	 
	5.3 Third Party Authorization; Other Consents
	 	 	63	 
	5.4 Binding Effect
	 	 	63	 
	5.5 Litigation
	 	 	64	 
	5.6 No Default
	 	 	64	 
	5.7 ERISA Compliance
	 	 	64	 
	5.8 Ownership of Property; Liens
	 	 	65	 
	5.9 Taxes
	 	 	65	 
	5.10 Financial Statements; No Material Adverse Effect
	 	 	65	 
	5.11 Environmental Compliance
	 	 	66	 
	5.12 Insurance
	 	 	66	 
	5.13 Subsidiaries
	 	 	66	 
	5.14 Margin Regulations; Investment Company Act
	 	 	66	 
	5.15 Full Disclosure
	 	 	66	 
	5.16 Compliance with Laws
	 	 	67	 
	5.17
Intellectual Property; Licenses, Etc.
	 	 	67	 
	5.18 Representations as to Foreign Obligors
	 	 	67	 






 


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	Section	 	Page	 
	 
	 	 	 	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	 	 	68	 
	 
	 	 	 	 
	6.1 Financial Statements
	 	 	68	 
	6.2 Certificates; Other Information
	 	 	69	 
	6.3 Notices
	 	 	70	 
	6.4 Payment of Obligations
	 	 	71	 
	6.5
Preservation of Existence, Etc.
	 	 	71	 
	6.6 Maintenance of Properties
	 	 	71	 
	6.7 Maintenance of Insurance
	 	 	71	 
	6.8 Compliance with Laws
	 	 	72	 
	6.9 Books and Records
	 	 	72	 
	6.10 Inspection Rights
	 	 	72	 
	6.11 Use of Proceeds
	 	 	72	 
	6.12 Approvals and Authorizations
	 	 	72	 
	6.13 Further Assurances
	 	 	72	 
	 
	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	73	 
	 
	 	 	 	 
	7.1 Liens
	 	 	73	 
	7.2 Dispositions
	 	 	74	 
	7.3 Fundamental Changes
	 	 	75	 
	7.4 Investments
	 	 	75	 
	7.5 Indebtedness
	 	 	76	 
	7.6 Use of Proceeds
	 	 	78	 
	7.7 Restricted Payments
	 	 	78	 
	7.8 Change in Nature of Business
	 	 	78	 
	7.9 Transactions with Affiliates
	 	 	78	 
	7.10 Restrictions on Subsidiary Dividends and Transfers of Assets
	 	 	78	 
	7.11 Financial Covenants
	 	 	79	 






 


iii









 





	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
	 	 	79	 
	 
	 	 	 	 
	8.1 Events of Default
	 	 	79	 
	8.2 Remedies Upon Event of Default
	 	 	81	 
	 
	 	 	 	 
	ARTICLE IX ADMINISTRATIVE AGENT
	 	 	82	 
	 
	 	 	 	 
	9.1 Appointment and Authorization of Administrative Agent
	 	 	82	 
	9.2 Delegation of Duties
	 	 	82	 
	9.3 Exculpatory Provisions
	 	 	83	 
	9.4 Reliance by Administrative Agent
	 	 	84	 
	9.5 Notice of Default
	 	 	84	 
	9.6 Non-Reliance on Administrative Agent and Other Lenders; Disclosure of
Information by Administrative Agent
	 	 	84	 
	9.7 Administrative Agent in its Individual Capacity; Rights as a Lender
	 	 	84	 
	9.8 Successor Administrative Agent
	 	 	85	 
	9.9 Administrative Agent May File Proofs of Claim
	 	 	86	 
	9.10 Guaranty Matters
	 	 	86	 
	9.11 Other Agents
	 	 	87	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	87	 
	 
	 	 	 	 
	10.1
Amendments, Etc.
	 	 	87	 
	10.2 Notices and Other Communications; Facsimile Copies
	 	 	88	 
	10.3 No Waiver; Cumulative Remedies
	 	 	90	 
	10.4 USA Patriot Act Notice
	 	 	90	 
	10.5 Expenses; Indemnity; Damage Waiver
	 	 	90	 
	10.6 Payments Set Aside
	 	 	92	 
	10.7 Successors and Assigns
	 	 	93	 
	10.8 Confidentiality
	 	 	97	 
	10.9 Set-off
	 	 	98	 
	10.10 Interest Rate Limitation
	 	 	98	 
	10.11 Integration
	 	 	98	 
	10.12 Survival of Representations and Warranties
	 	 	99	 
	10.13 Replacement of Lenders
	 	 	99	 
	10.14 Counterparts
	 	 	99	 






 


iv









 





	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	10.15 Severability
	 	 	100	 
	10.16 Automatic Debits of Fees
	 	 	100	 
	10.17 Governing Law
	 	 	100	 
	10.18 No Advisory or Fiduciary Responsibility
	 	 	101	 
	10.19 Electronic Execution of Assignments and Certain Other Documents
	 	 	102	 
	10.20 Termination of Existing Credit Agreement
	 	 	102	 
	10.21 Time of the Essence
	 	 	102	 
	10.22 Judgment Currency
	 	 	102	 
	 
	 	 	 	 
	ARTICLE XI COMPANY GUARANTY
	 	 	103	 
	 
	 	 	 	 
	11.1 The Guaranty
	 	 	103	 
	11.2 Insolvency
	 	 	103	 
	11.3 Nature of Liability
	 	 	104	 
	11.4 Independent Obligation
	 	 	104	 
	11.5 Authorization
	 	 	104	 
	11.6 Reliance
	 	 	105	 
	11.7 Subordination
	 	 	105	 
	11.8 Waivers
	 	 	106	 
	11.9 Nature of Liability
	 	 	106	 







 


v









 







CREDIT AGREEMENT




This CREDIT AGREEMENT (the “Agreement”) dated as of November 30, 2010 is among ABM
INDUSTRIES INCORPORATED, a Delaware corporation (the “Company”), certain Subsidiaries of
the Company party hereto pursuant to Section 2.15 (each a “Designated Borrower”
and, together with the Company, the “Borrowers” and each a “Borrower”), each lender
from time to time party hereto (collectively, the “Lenders” and individually, each a
“Lender”) and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.



The Company has requested that the Lenders provide a revolving credit facility, and the
Lenders are willing to do so on the terms and conditions set forth herein.



In consideration of the mutual agreements contained herein the parties hereto agree as
follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




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



“Acquisition” means any transaction or series of related transactions for the purpose
of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the
assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of
50% of the capital stock, partnership interests, membership interests or equity of any Person or
otherwise causing any Person to become a Subsidiary or (c) a merger or consolidation or any other
combination with another Person (other than a Person that is a Subsidiary); provided that
the Company or a Subsidiary is the surviving entity.



“Adjusted Consolidated EBITDA” means, for any period, Consolidated EBITDA for such
period; provided that in calculating Adjusted Consolidated EBITDA,




(a) if the Company or any Subsidiary (I) makes a Permitted Acquisition during such
period for aggregate consideration in excess of $15,000,000 or (II) consummates the Proposed
Acquisition during such period, the EBITDA of the Person or assets acquired (and, solely for
the purpose of determining pro forma compliance with financial covenants pursuant to
Section 7.11, any Person or assets to be acquired) shall be included on a pro forma
basis for such period (assuming the consummation of such Acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on the first day of such
period, but adjusted to add back certain non-recurring expenses to the extent disclosed to
and reasonably approved by the Required Lenders) based upon (i) to the extent available, (x)
the audited consolidated financial statements of such acquired Person (or with respect to
such acquired assets) as at the end of the fiscal year of such Person (or of the seller of
such assets) preceding such
Acquisition and (y) any subsequent unaudited financial statements for such Person (or
with respect to such acquired assets) for the period prior to such Acquisition so long as
such statements were prepared on a basis consistent with the audited financial statements
referred to above or (ii) to the extent the items listed in clause (i) are not
available, such historical financial statements and other information is disclosed to, and
to the extent requested by any Lender reasonably approved by, the Required Lenders; and


 


 









 






(b) if the Company or any Subsidiary makes a Disposition (or a series of related
Dispositions) during such period for aggregate consideration in excess of $15,000,000, the
EBITDA of any Person (or division or similar business unit) disposed of by the Company or
any Subsidiary during such period shall be excluded on a pro forma basis for such period
(assuming the consummation of such Disposition occurred on the first day of such period).



“Adjusted Consolidated EBITDAR” means, for any period, the sum of (a) Adjusted
Consolidated EBITDA for such period plus (b) Adjusted Rental Expense for such period.



“Adjusted Rental Expense” means, for any period, rental expense for such period,
adjusted and calculated in the same manner as Adjusted Consolidated EBITDA for such period.



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



“Administrative Agent’s Office” means, with respect to any currency, the
Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.2
with respect to such currency, or such other address or account with respect to such currency as
the Administrative Agent may from time to time notify the Company and the Lenders.



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



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



“Agent-Related Persons” means the Administrative Agent together with its Affiliates
(including, in the case of Bank of America in its capacity as the Administrative Agent, the
Arranger), and the Related Parties of such Persons and Affiliates.



“Aggregate Commitments” means the Commitments of all the Lenders. The Aggregate
Commitments at the Effective Time are $650,000,000.




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



“Alternative Currency” means each of Euro, Sterling and Canadian Dollars.


 


2









 





“Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as
determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the
basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase
of such Alternative Currency with Dollars.



“Alternative Currency Sublimit” means an amount equal to the lesser of the Aggregate
Commitments and $50,000,000. The Alternative Currency Sublimit is part of, and not in addition to,
the Aggregate Commitments.



“Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time, subject to adjustment as provided in Section 2.17. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.2 or if the Aggregate Commitments
have expired, then the Applicable Percentage of each Lender shall be determined based on the
Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of
such Lender on Schedule 2.1 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable.



“Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Leverage Ratio as set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Eurodollar	 	 	 	 	 	 	 
	 	 	 	 	Rate/IBOR	 	 	 	 	 	 	 
	 	 	 	 	Rate/Letters of	 	 	Base Rate	 	 	 	 
	Pricing Level	 	Leverage Ratio	 	Credit	 	 	Loans	 	 	Non-Use Fee	 
	1	 	≥
 2.75 to 1.0
	 	 	2.500	%	 	 	1.500	%	 	 	0.500	%
	2	 	≥
 2.25 to 1.0 but <2.75 to 1.0
	 	 	2.250	%	 	 	1.250	%	 	 	0.375	%
	3	 	≥
 1.50 to 1.0 but <2.25 to 1.0
	 	 	2.000	%	 	 	1.000	%	 	 	0.375	%
	4	 	≥
 0.75 to 1.0 but <1.50 to 1.0
	 	 	1.750	%	 	 	0.750	%	 	 	0.250	%
	5	 	< 0.75 to 1.0
	 	 	1.500	%	 	 	0.500	%	 	 	0.250	%






 


3









 





Initially, the Pricing Level shall be Pricing Level 1. The Pricing Level shall be adjusted,
to the extent applicable, 60 days (or, in the case of the last fiscal quarter of any fiscal year,
90 days) after the end of each fiscal quarter (beginning with the fiscal quarter ending January 31,
2011) based on the Leverage Ratio as of the last day of such fiscal quarter; provided that
if the Company fails to deliver the financial statements required by Section 6.1(a) or
(b), as applicable, and the related Compliance Certificate required by Section
6.2(b) by the 60th day (or, if applicable, the 90th day) after any fiscal quarter, Pricing
Level 1 shall apply until such financial statements are delivered. If, as a result of any
restatement of or other adjustment to the financial
statements of the Company or for any other reason (excluding any restatement or other
adjustment resulting from a retrospective change in GAAP), the Lenders determine that (a) the
Leverage Ratio as calculated by the Company as of any applicable date was inaccurate and (b) a
proper calculation of the Leverage Ratio would have resulted in different pricing for any period,
then (i) if the proper calculation of the Leverage Ratio would have resulted in higher pricing for
such period, the Company shall automatically and retroactively be obligated to pay to the
Administrative Agent for the benefit of the applicable Lenders, promptly on demand by the
Administrative Agent, an amount equal to the excess of the amount of interest and fees that should
have been paid for such period over the amount of interest and fees actually paid for such period;
and (ii) if the proper calculation of the Leverage Ratio would have resulted in lower pricing for
such period, the Lenders shall have no obligation to repay any interest or fees to the Company;
provided that if, as a result of any restatement or other event a proper calculation of the
Leverage Ratio would have resulted in higher pricing for one or more periods and lower pricing for
one or more other periods (due to the shifting of income or expenses from one period to another
period or any similar reason), then the amount payable by the Company pursuant to clause
(i) above shall be based upon the excess, if any, of the amount of interest and fees that
should have been paid for all applicable periods over the amount of interest and fees paid for all
such periods.



“Applicable Time” means, with respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for such Alternative Currency as
may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be
necessary for timely settlement on the relevant date in accordance with normal banking procedures
in the place of payment.




“Applicant Borrower” has the meaning specified in Section 2.15.



“Arranger” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, in its capacity
as sole lead arranger and sole book manager.



“Assignment and Assumption” means an Assignment and Assumption substantially in the
form of Exhibit E-1.



“Attorney Costs” means (a) all reasonable fees, expenses and disbursements of any law
firm or other external counsel and (b) without duplication, the allocated cost of internal legal
services and all expenses and disbursements of internal counsel to the extent, in the case of this
clause (b), related to the enforcement or protection of rights and remedies hereunder or
under the other Loan Documents during the existence of an Event of Default.



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


 


4









 





“Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended October 31, 2009, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year, including the notes thereto.



“Availability Period” means the period from the Effective Time to the earliest of (a)
the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section
2.6, and (c) the date of termination of the commitment of each Lender to make Loans and of the
obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.2.




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



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



“Base Rate Loan” means a Revolving Loan or a Swing Line Loan, as the context requires,
that bears interest by reference to the Base Rate. All Base Rate Loans shall be denominated in
Dollars.



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



“Borrowing” means a Revolving Borrowing or a Swing Line Borrowing, as the context may
require.



“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is
located and:



(a) if such day relates to any interest rate settings as to a Eurodollar Rate Loan or IBOR
Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars
in respect of any such Eurodollar Rate Loan or IBOR Rate Loan, as applicable, or any other dealings
in Dollars to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan
or IBOR Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and
between banks in the London interbank eurodollar market;



(b) if such day relates to any interest rate settings as to a Eurodollar Rate Loan denominated
in Euro, any fundings, disbursements, settlements and payments in Euro in respect
of any such Eurodollar Rate Loan, or any other dealings in Euro to be carried out pursuant to
this Agreement in respect of any such Eurodollar Rate Loan, means a TARGET Day;


 


5









 





(c) if such day relates to any interest rate settings as to a Eurodollar Rate Loan denominated
in a currency other than Dollars or Euro, means any such day on which dealings in deposits in the
relevant currency are conducted by and between banks in the London or other applicable offshore
interbank market for such currency; and



(d) if such day relates to any fundings, disbursements, settlements and payments in a currency
other than Dollars or Euro in respect of a Eurodollar Rate Loan denominated in a currency other
than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be
carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan (other than any
interest rate settings), means any such day on which banks are open for foreign exchange business
in the principal financial center of the country of such currency.




“CA $” mean lawful money of Canada.



“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Administrative Agent, L/C Issuer or Swing Line Lender (as applicable)
and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or
obligations of Lenders to fund participations in respect of either thereof (as required pursuant to
Section 2.5, 2.16, 2.17 or 8.2 hereof, as applicable), cash or
deposit account balances or, if the L/C Issuer or Swing Line Lender benefitting from such
collateral shall agree in its sole discretion, other credit support, in each case pursuant to
documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b)
the L/C Issuer or the Swing Line Lender (as applicable). “Cash Collateral” shall have a meaning
correlative to the foregoing and shall include the proceeds of such cash collateral and other
credit support.



“Change of Control” means, with respect to any Person, an event or series of events by
which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, but excluding the Rosenberg Family, any employee benefit plan of such person
or its subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5
under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have
“beneficial ownership” of all securities that such person or group has the right to acquire (such
right, an “option right”), whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of 25% or more of the equity securities of such Person
entitled to vote for members of the board of directors or equivalent governing body of such Person
on a fully-diluted basis (and taking into account all such securities that such person or group has
the right to acquire pursuant to any option right).



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


 


6









 






“Code” means the Internal Revenue Code of 1986.



“Commitment” means, as to each Lender, its obligation to (a) make Revolving Loans to
the Borrowers pursuant to Section 2.1, (b) purchase participations in L/C Obligations, and
(c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule
2.1 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.




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



“Company Guaranty” means the Guaranty made by the Company in favor of the
Administrative Agent and the Lenders pursuant to Article XI.



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



“Consolidated EBITDA” means, for any period, an amount equal to Consolidated Net
Income for such period plus (a) to the extent deducted in calculating such Consolidated Net
Income, (i) Consolidated Interest Charges, (ii) provisions for federal, state, local and foreign
income taxes payable by the Company and its Subsidiaries, (iii) depreciation and amortization
expense, (iv) all non-cash, non-recurring and extraordinary charges (including charges resulting
from the application of Financial Accounting Standard No. 142) and (v) stock based compensation
expense, plus (b) if the Proposed Acquisition is consummated in accordance with the terms
hereof on or prior to December 31, 2010, for the periods of four fiscal quarters ending on January
31, 2011, April 30, 2011, July 31, 2011, and October 31, 2011, $7,826,517, $6,217,133, $3,800,000
and $1,000,000, respectively; minus (c) to the extent included in such Consolidated Net
Income, all non-recurring and extraordinary gains or income. Notwithstanding the above, (x)
non-cash losses and gains with respect to $25,000,000 of par value auction rate securities held by
the Company as of the Effective Time shall be added back to (in the case of losses), or deducted
from (in the case of gains), Consolidated EBITDA (to the extent included in the calculation of
Consolidated Net Income) and (y) non-cash adjustments with respect to insurance liabilities related
to prior periods, in an aggregate amount not to exceed $5,000,000 for any period of four fiscal
quarters, shall be added back to (in the case of negative adjustments), or deducted from (in the
case of positive adjustments), Consolidated EBITDA (to the extent included in the calculation of
Consolidated Net Income).



“Consolidated Interest Charges” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum, without duplication, of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of the Company and its Subsidiaries in
connection with borrowed money (including capitalized interest) or the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP, and (b) the portion
of rent expense of the Company and its Subsidiaries with respect to such period under capital
leases or with respect to Synthetic Lease Obligations that, in each case, is treated as interest in
accordance with GAAP.


 


7









 





“Consolidated Net Income” means, for any period, the consolidated net income of the
Company and its Subsidiaries for such period.



“Consolidated Net Worth” means, as of any date of determination, Shareholders’ Equity
on such date.



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




“Control” has the meaning specified in the definition of “Affiliate.”



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



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



“Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would (if not cured or otherwise
remedied during such time) be an Event of Default.



“Default Rate” means (a) with respect to Base Rate Loans, an interest rate equal to
(i) the Base Rate plus (ii) the Applicable Rate plus (iii) 2% per annum; (b) with
respect to Eurodollar Rate Loans, an interest rate equal to (i) the Eurodollar Rate plus
(ii) the Applicable Rate plus (iii) in the case of a Eurodollar Rate Loan of any Lender
which is lent from a Lending Office in the United Kingdom or a Participating Member State, the
Mandatory Cost plus (iv) 2% per annum; and (c) with respect to IBOR Rate Loans, an interest
rate equal to (i) the IBOR Rate plus (ii) the Applicable Rate plus (iii) 2% per
annum, in each case to the fullest extent permitted by applicable Laws.



“Defaulting Lender” means, subject to Section 2.17(b), any Lender that, as
determined by the Administrative Agent, (a) has failed to perform any of its funding obligations
hereunder, including in respect of its Loans or participations in respect of Letters of Credit or
Swing Line Loans, within three Business Days of the date required to be funded by it hereunder,
unless such Lender notifies the Administrative Agent and the Company that such failure is the
result of such Lender’s good faith determination that a condition precedent to funding
(specifically identified and including the particular default, if any) has not been satisfied, (b)
has notified the Borrower or the Administrative Agent that it does not intend to comply with its
funding obligations or has made a public statement to that effect with respect to its funding
obligations hereunder or under other agreements in which it commits to extend credit, (c) has
failed, within three Business Days after request by the Administrative Agent, to confirm in a
manner satisfactory to the Administrative Agent that it will comply with its funding obligations,
or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a
proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator,
assignee for the benefit of
creditors or similar Person charged with reorganization or liquidation of its business or a
custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent
to, approval of or acquiescence in any such proceeding or appointment; provided that a
Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any
equity interest in that Lender or any direct or indirect parent company thereof by a Governmental
Authority.


 


8









 






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



“Designated Borrower Sublimit” means an amount equal to the lesser of the Aggregate
Commitments and $50,000,000. The Designated Borrower Sublimit is part of, and not in addition to,
the Aggregate Commitments.




“Designated Borrower Notice” has the meaning specified in Section 2.15.



“Designated Borrower Request and Assumption Agreement” has the meaning specified in
Section 2.15.



“Disclosure Certificate” means the certificate dated November 30, 2010 delivered by
the Company to the Administrative Agent and the Lenders.



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




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



“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency,
the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C
Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of
the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.



“Earn-out” means, with respect to any Person, any payment that may be required to be
made by such Person in connection with an Acquisition, where the obligation of such Person to make
such payment (or the amount thereof) is contingent upon the financial or other performance of the
Person or asset acquired. The amount of any Earn-out shall equal the anticipated amount thereof as
reasonably determined in good faith by the Company.



“EBITDA” means, for any Person for any period, the consolidated net income of such
Person for such period plus, to the extent deducted in determining such consolidated net income,
interest expense, income tax expense, depreciation and amortization of such Person.



“Effective Time” means the time at which all the conditions precedent in Section
4.1 are satisfied or waived in accordance with Section 4.1 (or, in the case of
Section 4.1(b), waived by the Person entitled to receive the applicable payment).


 


9









 






“Eligible Assignee” has the meaning specified in Section 10.7(g).



“EMU” means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam
Treaty of 1998.



“EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.



“Environmental Claims” means all claims, however asserted, by any Governmental
Authority or other Person alleging potential liability or responsibility for violation of any
Environmental Law, or for release or injury to the environment.



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




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



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



“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company
or any ERISA Affiliate; or (g) the determination that any Pension Plan is considered an at-risk
plan or that any Multiemployer Plan is in endangered or critical status within the meaning of
Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA, as applicable.



“Euro” and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.


 


10









 





“Eurodollar Interest Period” means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a
Eurodollar Rate Loan and ending on the date one or two weeks or one, two, three or six months
thereafter (or on such other date as all Lenders shall agree), as selected by the Company in a
Revolving Loan Notice; provided that:




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




(b) except as otherwise agreed by all Lenders, any Eurodollar Interest Period that
begins on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Eurodollar Interest
Period) shall end on the last Business Day of the calendar month at the end of such
Eurodollar Interest Period; and




(c) no Eurodollar Interest Period shall extend beyond the scheduled Maturity Date.



“Eurodollar Rate” means for any Interest Period with respect to any Eurodollar Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or another commercially available source providing quotations of BBA LIBOR
as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.
If such rate is not available at such time for any reason, then the “Eurodollar Rate” for such
Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate
at which deposits in Dollars for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar market at their request
at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such
Interest Period.



“Eurodollar Rate Loan” means a Revolving Loan that bears interest at a rate based on
the Eurodollar Rate. Eurodollar Rate Loans may be denominated in Dollars or in an Alternative
Currency. All Revolving Loans denominated in an Alternative Currency must be Eurodollar Rate
Loans.




“Event of Default” has the meaning specified in Section 8.1.


 


11









 





“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of any
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which such Borrower is located, (c) any backup withholding
tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to
comply with clause (A) of Section 3.1(e)(ii), (d) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Company under Section 10.13), any United
States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender
pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates
a new Lending Office), 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 such Borrower with respect to such withholding tax pursuant to Section 3.1(a)(ii)
or (iii) or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with clause (B) of Section 3.1(e)(ii), (e) any
withholding Taxes imposed by FATCA and (f) all additions to tax, penalties and interest incurred
with respect to the foregoing. Notwithstanding anything to the contrary contained in this
definition, “Excluded Taxes” shall not include any withholding tax imposed at any time on payments
made by or on behalf of a Foreign Obligor to any Lender hereunder or under any other Loan Document;
provided that such Lender shall have complied with Section 3.1(e)(i).



“Existing Credit Agreement” means the Credit Agreement dated as of November 14, 2007
among the Company, Bank of America, as administrative agent, and a syndicate of lenders.



“Existing Letters of Credit” means the letters of credit listed on Schedule
1(A) that were issued under, or that otherwise constitute a “Letter of Credit” under, the
Existing Credit Agreement.



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



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



“Fee Letter” means the letter agreement dated November 1, 2010, among the Company, the
Administrative Agent and the Arranger.



“Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of
(a) Adjusted Consolidated EBITDAR for the period of the four prior fiscal quarters ending on such
date to (b) the sum, without duplication, of (i) Consolidated Interest Charges for such period plus
(ii) Adjusted Rental Expense for such period plus (iii) scheduled principal payments of
long-term Indebtedness required to be made during such period.


 


12









 





“Foreign Lender” means, with respect to any Borrower, any Lender that is organized
under the Laws of a jurisdiction other than that in which such Borrower is resident for tax
purposes (including such a Lender when acting in the capacity of the L/C Issuer). For purposes of
this definition, the United States, each State thereof and the District of Columbia shall be deemed
to constitute a single jurisdiction.




“Foreign Obligor” means a Loan Party that is a Foreign Subsidiary.



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




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



“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C
Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.



“Funded Indebtedness” means all Indebtedness of the Company and its Subsidiaries,
excluding (i) contingent obligations in respect of commercial letters of credit and Guarantees
(except, in each case, to the extent constituting Guarantees in respect of Indebtedness of a Person
other than the Company or any Subsidiary), (ii) obligations under Swap Contracts and (iii)
Indebtedness of the Company to Subsidiaries and Indebtedness of Subsidiaries to the Company or to
other Subsidiaries.



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



“Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government.


 


13









 





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




“Guaranteed Creditors” means, collectively, the Administrative Agent and each Lender.



“Guaranteed Obligations” means the principal and interest (whether such interest is
allowed as a claim in a bankruptcy proceeding with respect to any Designated Borrower or otherwise)
of each Loan made under this Agreement to any Designated Borrower, together with all other
obligations (including obligations which, but for the automatic stay under Section 362(a) of the
United States Bankruptcy Code, would become due) and liabilities (including indemnities, fees and
interest thereon), direct or indirect, of any Designated Borrower to the Administrative Agent or
any Lender now existing or hereafter incurred under, arising out of or in connection with this
Agreement or any other Loan Document.




“Guaranties” means the Company Guaranty and the Subsidiary Guaranty.



“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.




“Honor Notice Date” has the meaning specified in Section 2.3(c)(i).



“IBOR Interest Period” means, with respect to any IBOR Rate Loan, each period
commencing on the date such Loan is made or continued or converted from a Base Rate Loan to an IBOR
Rate Loan or the last day of the next preceding IBOR Interest Period with respect to such IBOR Rate
Loan, and ending one, two, three, four, five, six or seven days thereafter, as the Company may
select as provided in Section 2.4(b). Notwithstanding the foregoing: (a) each IBOR
Interest Period shall end on a Business Day; (b) no IBOR Interest Period may extend beyond the
scheduled Maturity Date; and (c) no more than six IBOR Interest Periods shall be in effect at the
same time.


 


14









 





“IBOR Rate” means the interest rate at which Bank of America’s Grand Cayman Banking
Center, Grand Cayman, British West Indies, would offer Dollar deposits for the applicable Interest
Period to other major banks in the offshore Dollar interbank market.



“IBOR Rate Loan” means a Swing Line Loan that bears interest at a rate based on the
IBOR Rate.



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




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




(ii) all obligations of such Person to pay the deferred purchase price of property or
services (other than (i) trade accounts payable in the ordinary course of business and (ii)
Earn-outs owed by such Person with respect to any Acquisition);




(iii) all Attributable Indebtedness of such Person under capital leases and with
respect to Synthetic Lease Obligations;




(iv) all direct or contingent obligations of such Person arising under letters of
credit (including standby and commercial), bankers’ acceptances, bank guaranties and similar
instruments;




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




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




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



For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or similar entity in which such Person is a general partner or with respect to which
such Person has liability under applicable laws for the obligations of such entity, except to the
extent that such Indebtedness is expressly made non-recourse to such Person. The amount of any net
obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any
date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such
date.




“Indemnified Taxes” means Taxes other than Excluded Taxes.




“Indemnitee” has the meaning set forth in Section 10.5.



“Information” has the meaning set forth in Section 10.8.


 


15









 





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



“Interest Period” means a Eurodollar Interest Period or an IBOR Interest Period, as
the context requires.



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




“IP Rights” has the meaning set forth in Section 5.17.




“IRS” means the United States Internal Revenue Service.



“ISP” means “International Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in effect at the time
of issuance).



“Joint Venture” means a partnership, limited liability company, joint venture or other
similar legal arrangement (whether created by contract or conducted through a separate legal
entity) now or hereafter formed by the Company or any of its Subsidiaries with another Person in
order to conduct a common venture or enterprise with such Person.



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



“L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances
shall be denominated in Dollars.



“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Revolving
Borrowing. All L/C Borrowings shall be denominated in Dollars.


 


16









 





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



“L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



“L/C Obligations” means, as at any date of determination, the aggregate undrawn amount
of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all
L/C Borrowings. For the purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.7. For all purposes of this Agreement, if on any date of determination a Letter of Credit
has expired by its terms but any amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so
remaining available to be drawn.



“Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the L/C Issuer and the Swing Line Lender.



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




“Letter of Credit” has the meaning specified in Section 2.3(a)(i).



“Letter of Credit Application” means an application and agreement for the issuance or
Modification of a Letter of Credit in the form from time to time in use by the L/C Issuer.



“Letter of Credit Sublimit” means an amount equal to the lesser of the Aggregate
Commitments and $300,000,000. The Letter of Credit Sublimit is part of, and not in addition to,
the Aggregate Commitments.



“Leverage Ratio” means, as of any date of determination, for the Company and its
Subsidiaries on a consolidated basis, the ratio of (a) Funded Indebtedness of the Company and its
Subsidiaries as of such date to (b) Adjusted Consolidated EBITDA for the period of the four fiscal
quarters ending on such date.



“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, and any financing lease having substantially the same economic
effect as any of the foregoing).



“Lightning Letters of Credit” means the letters of credit listed on Schedule
1(B).



“Loan” means an extension of credit by a Lender to the Company or a Borrower under
Article II in the form of a Revolving Loan or a Swing Line Loan.


 


17









 





“Loan Documents” means this Agreement, each Designated Borrower Request and Assumption
Agreement, each Note, any agreement creating or perfecting rights in Cash Collateral pursuant to
the provisions of Section 2.16 of this Agreement, the Fee Letters, and the Guaranties.



“Loan Parties” means, collectively, the Company, each Subsidiary Guarantor and each
Designated Borrower, it being understood that “Loan Parties” shall not include any Subsidiary that
has been released as a Subsidiary Guarantor pursuant to Section 9.10.



“Mandatory Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1(C).



“Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or
condition (financial or otherwise) of the Company or the Company and its Subsidiaries taken as a
whole; (b) a material impairment of the ability of any Loan Party to perform its obligations under
any Loan Document to which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan Document to which it
is a party.



“Material Financial Amount” means, at any time, 7.5% of the sum of (i) Consolidated
Net Worth as shown in the most recent financial statements delivered pursuant to Section
6.1 and (ii) the lesser of (a) the amount of all non-cash adjustments with respect to
impairments of goodwill that reduced Consolidated Net Worth and (b) $50,000,000.



“Maturity Date” means (a) November 30, 2015 or (b) such earlier date upon which the
Loans and other Obligations become due in accordance with the terms hereof.



“Minimum Currency Threshold” means (i) in the case of Revolving Loans denominated in
Dollars, $2,000,000 or a higher integral multiple of $1,000,000, (ii) in the case of Revolving
Loans denominated in Euros, EUR2,000,000 or a higher integral multiple of EUR1,000,000, (iii) in
the case of Revolving Loans denominated in Canadian Dollars, CA $2,000,000 or a higher integral
multiple of CA $1,000,000 and (iv) in the case of Revolving Loans denominated in Sterling,
£2,000,000 or a higher integral multiple of £1,000,000.



“Modification” means, with respect to any Letter of Credit, any amendment to such
Letter of Credit to amend or otherwise modify such Letter of Credit (including any extension of the
expiry date therefor or increase in the amount thereof). The term “Modify” has a correlative
meaning.



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



“Note” means a promissory note made by a Borrower in favor of a Lender evidencing
Loans made by such Lender to such Borrower, substantially in the form of Exhibit C.


 


18









 





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



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



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



“Outstanding Amount” means (i) with respect to Revolving Loans on any date, the Dollar
Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of such Revolving Loans occurring on such date; (ii) with
respect to Swing Line Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of such Swing Line Loans occurring on
such date; and (iii) with respect to any L/C Obligations on any date, the Dollar Equivalent amount
of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any
L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the
L/C Obligations as of such date, including as a result of any reimbursements by the Company of
Unreimbursed Amounts.




“Participant” has the meaning specified in Section 10.7(d).




“Participant Register” has the meaning set forth in Section 10.7(d).




“Participating Member State” means each state so described in any EMU Legislation.




“PBGC” means the Pension Benefit Guaranty Corporation.



“Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Company or any ERISA Affiliate or to which the Company or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of
a multiple employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.



 


19









 





“Permitted Acquisition” means any Acquisition other than the Proposed Acquisition that
meets each of the following requirements: (i) the Person to be acquired is in, or the assets to be
acquired are for use in, the same or similar line of business as the Company or a line of business
that is complementary thereto, (ii) in the case of the Acquisition of a Person, such Acquisition
has been approved by the board of directors or similar governing body and, if applicable, the
shareholders of the Person to be acquired, (iii) the Company is and will be in pro forma compliance
with each of the financial covenants contained in Section 7.11(a) and (b) before
and after giving effect to such Acquisition, (iv) no Default shall exist at the time of, or shall
result from, such Acquisition, (v) both before and after giving effect to such Acquisition, the
Leverage Ratio shall not be greater than 2.75 to 1.0, and (vi) the Company shall have delivered to
the Administrative Agent at least five Business Days prior to the consummation of such Acquisition
a pro forma Compliance Certificate for the fiscal quarter most recently ended (calculated as if
such Acquisition had occurred on the first day of the period of four consecutive fiscal quarters
ending on the last day of such fiscal quarter).



“Permitted Investments” means (a) direct obligations of, or obligations fully
guaranteed by, the United States or any agency thereof; (b) direct obligations of, or obligations
fully guaranteed by, any State, territory or possession of the United States (including the
District of Columbia) or any agency thereof which have a short-term rating of at least SP-1 by S&P
(as defined below) or MIG-1 by Moody’s (as defined below) or a long-term rating of at least A by
S&P or A1 by Moody’s (or, in each case, the equivalent thereof by another Rating Agency (as defined
below)); (c) commercial paper issued by corporations or financial institutions which have the
highest short-term or long-term rating, as applicable, of at least one Rating Agency and at least
the second highest short-term or long-term rating, as applicable, of another Rating Agency; (d)
unsecured promissory notes (other than commercial paper) issued by corporations or financial
institutions which have a short-term debt rating of at least A-1 from S&P and P-1 from Moody’s (or
the equivalent thereof by another Rating Agency) and a long-term debt rating of at least A from S&P
and A-1 from Moody’s (or the equivalent thereof by another Rating Agency); (e) time deposits with,
and certificates of deposit, acceptances and similar instruments issued by, (i) any Lender or (ii)
any office of any bank or trust company whose certificates of deposit are rated in one of the two
highest grades by at least one Rating Agency; (f) repurchase agreements entered into with a bank or
trust company described in clause (e) (or with securities broker-dealers of nationally
recognized standing) with respect to obligations described in clause (a); (g) obligations
of United States or foreign commercial banks having a minimum short-term debt rating of F1 from
Fitch; (h) shares of open-ended investment companies registered under the Investment Company Act of
1940; provided that each such investment company complies with Rule 2a-7 of the Securities
Exchange Act of 1934, maintains a constant net asset value, offers daily liquidity and has a
weighted average maturity of not more than 90 days; and (i) auction rate securities held by the
Company as of the Effective Time with an aggregate par value of not greater than $25,000,000. For
purposes of the foregoing, “Rating Agency” means S&P, Moody’s, Fitch or any other
nationally-recognized credit rating agency; “Fitch” means Fitch, Inc., doing business as Fitch
Ratings; “Moody’s” means Moody’s Investors Service, Inc.; and “S&P” means Standard & Poor’s Rating
Services.


 


20









 





“Permitted Joint Venture” means an Investment in a Joint Venture (a) that is not a
Loan Party and does not own equity securities in a Loan Party, and (b) in respect of which all
Indebtedness, if any, assumed by any Loan Party in respect thereof can be quantified.



“Permitted Stock Repurchases” means repurchases or redemptions by the Company of its
capital stock for fair and reasonable consideration not exceeding $75,000,000 in aggregate amount
during any fiscal year; provided that the Company may add up to $10,000,000 of the unused
portion of such limit for any fiscal year to the limit for the immediately succeeding fiscal year.



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



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




“Platform” has the meaning set forth in Section 6.2.



“Proposed Acquisition” means a proposed Acquisition disclosed to the Administrative
Agent in writing prior to the Effective Time and referred to as the “Lightning Transaction.”




“Register” has the meaning set forth in Section 10.7(c).



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



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



“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Revolving Loans, a Revolving Loan Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line
Loan Notice.



“Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.2, Lenders holding in the aggregate more than 50% of the Total Outstandings (with
the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.


 


21









 





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



“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other equity interest of the
Company or any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other equity interest or of
any option, warrant or other right to acquire any such capital stock or other equity interest.



“Revaluation Date” means (a) with respect to any Loan, each of the following: (i)
each date of a Borrowing of a Eurodollar Rate Loan denominated in an Alternative Currency, (ii)
each date of a continuation of a Eurodollar Rate Loan denominated in an Alternative Currency
pursuant to Section 2.2, and (iii) such additional dates as the Administrative Agent shall
determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each
of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative
Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of
increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any
payment by the L/C Issuer under any Letter of Credit denominated in an Alternative Currency, and
(iv) such additional dates as the Administrative Agent or the L/C Issuer shall determine or the
Required Lenders shall require.



“Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of
the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by
each of the Lenders pursuant to Section 2.1.




“Revolving Loan” has the meaning specified in Section 2.1.



“Revolving Loan Notice” means a notice of (a) a Revolving Borrowing, (b) a conversion
of Revolving Loans from one Type to the other or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.2(a), which, if in writing, shall be substantially in the form of
Exhibit A.



“Rosenberg Family” means the lineal descendants of Morris Rosenberg, their respective
spouses, any trust for the benefit of the foregoing and any other Person more than 50% of the
equity of which is owned by any of the foregoing.



“Same Day Funds” means (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by the Administrative Agent or the L/C
Issuer, as the case may be, to be customary in the place of disbursement or payment for the
settlement of international banking transactions in the relevant Alternative Currency.



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


 


22









 





“Shareholders’ Equity” means, as of any date of determination, consolidated
shareholders’ equity of the Company and its Subsidiaries as of that date determined in accordance
with GAAP.




“SPC” has the meaning specified in Section 10.7(h).



“Spot Rate” for a currency means the rate determined by the Administrative Agent or
the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the
spot rate for the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days
prior to the date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution
designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does
not have as of the date of determination a spot buying rate for any such currency; and
provided, further that the L/C Issuer may use such spot rate quoted on the date as
of which the foreign exchange computation is made in the case of any Letter of Credit denominated
in an Alternative Currency.




“Sterling” and “£” mean the lawful currency of the United Kingdom.



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



“Subsidiary Guarantors” means, collectively, each Subsidiary identified on Annex
A as of the Effective Time and all Subsidiaries of the Company that have executed a counterpart
of the Subsidiary Guaranty, it being understood that each Subsidiary that has been released as a
Subsidiary Guarantor pursuant to Section 9.10 shall cease to be a Subsidiary Guarantor upon
the effectiveness of such release.



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



“Surety Bond” means, with respect to any Person, a bid bond, performance bond, payment
bond, maintenance bond, license bond, permit bond or similar bond issued on behalf of such Person
by a bonding company or other surety.


 


23









 





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



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



“Swing Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.4.



“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.4.



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




“Swing Line Loan” has the meaning specified in Section 2.4(a).



“Swing Line Loan Notice” means a notice of (a) a Swing Line Borrowing, (b) a
conversion of Swing Line Loans from one Type to the other or (c) a continuation of Swing Line
Loans, pursuant to Section 2.4(b), which, if in writing, shall be substantially in the form
of Exhibit B.



“Swing Line Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



“TARGET Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system
ceases to be operative, such other payment system (if any) determined by the Administrative
Agent to be a suitable replacement) is open for the settlement of payments in Euro.



 


24









 





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



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



“Type” means, (a) with respect to a Revolving Loan, its character as a Base Rate Loan
or a Eurodollar Rate Loan and (b) with respect to a Swing Line Loan, its character as a Base Rate
Loan or an IBOR Rate Loan.



“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.



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



“Unreimbursed Amount” has the meaning set forth in Section 2.3(c)(i).




1.2 Other Interpretive Provisions.



With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:



(a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.



(b) (i) The words “herein,” “hereto,” “hereof” and “hereunder”
and words of similar import when used in any Loan Document shall refer to such Loan Document as a
whole and not to any particular provision thereof.



(ii) Article, Section, Exhibit and Schedule references are to the Loan Document in which such
reference appears.




(iii) The term “including” is by way of example and not limitation.



(iv) The term “documents” includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings, however evidenced, whether
in physical or electronic form.



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


 


25









 





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



(e) Except to the extent otherwise specified, references herein to “fiscal quarter” and
“fiscal year” mean such fiscal periods of the Company.




1.3 Accounting Terms.



(a) All accounting terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner
consistent with that used in preparing the Audited Financial Statements, except as
otherwise specifically prescribed herein.



(b) If at any time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Company or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so amended,
(i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Company shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.



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



1.5 References to Agreements and Laws. Unless otherwise expressly provided herein,
(a) references to Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are not prohibited by any
Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.



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


 


26









 





1.7 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of
such Letter of Credit in effect at such time; provided that with respect to any Letter of
Credit
that, by its terms or the terms of any Letter of Credit Application or any document related
thereto, provides for one or more automatic increases in the stated amount thereof, the amount of
such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of
such Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.



1.8 Exchange Rates; Currency Equivalents. (i) The Administrative Agent or the L/C
Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for
calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in
Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and
shall be the Spot Rates employed in converting any amounts between the applicable currencies until
the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan
Parties hereunder or calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan
Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or
the L/C Issuer, as applicable.



(ii) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or
prepayment of a Eurodollar Rate Loan or the issuance, amendment or extension of a Letter of Credit,
an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such
Borrowing, Eurodollar Rate Loan or Letter of Credit is denominated in an Alternative Currency, such
amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the
nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined
by the Administrative Agent or the L/C Issuer, as the case may be.



1.9 Change of Currency. (i) Each obligation of the Borrowers to make a payment
denominated in the national currency unit of any member state of the European Union that adopts the
Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of
such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any
such member state, the basis of accrual of interest expressed in this Agreement in respect of that
currency shall be inconsistent with any convention or practice in the London interbank market for
the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by
such convention or practice with effect from the date on which such member state adopts the Euro as
its lawful currency; provided that if any Committed Borrowing in the currency of such
member state is outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Committed Borrowing, at the end of the then current Interest Period.




(ii) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to
reflect the adoption of the Euro by any member state of the European Union and any relevant
market conventions or practices relating to the Euro.




(iii) Each provision of this Agreement also shall be subject to such reasonable changes
of construction as the Administrative Agent may from time to time specify to be
appropriate to reflect a change in currency of any other country and any relevant
market conventions or practices relating to the change in currency.


 


27









 





ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS





2.1 Revolving Loans.



Subject to the terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a “Revolving Loan”) to the Borrowers in Dollars or in one or more
Alternative Currencies from time to time on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment;
provided that after giving effect to any Revolving Borrowing, (i) the Total Outstandings
shall not exceed the Aggregate Commitments, (ii) the aggregate Outstanding Amount of the Revolving
Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed the amount of such Lender’s Commitment, (iii) the aggregate
Outstanding Amount of all Revolving Loans made to the Designated Borrowers shall not exceed the
Designated Borrower Sublimit, and (iv) the aggregate Outstanding Amount of all Revolving Loans
denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit. Within
the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, the
Company may borrow under this Section 2.1, prepay under Section 2.5, and reborrow
under this Section 2.1. Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans,
as further provided herein.




2.2 Procedure for Borrowing, Conversion and Continuation of Revolving Loans.



(a) Each Revolving Borrowing, each conversion of Revolving Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the Company’s irrevocable notice
to the Administrative Agent, which may be given by telephone. Each such notice must be received by
the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested
date of any borrowing of, conversion of or to or continuation of Eurodollar Rate Loans denominated
in Dollars, (ii) four Business Days prior to the requested date of any Borrowing or continuation of
Eurodollar Rate Loans denominated in Alternative Currencies and (iii) on the requested date of any
borrowing of Base Rate Loans. Each telephonic notice by the Company pursuant to this Section
2.2(a) must be confirmed promptly by delivery to the Administrative Agent of a written
Revolving Loan Notice, appropriately completed and signed by a Responsible Officer of the Company.
Each borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal
amount equal to the Minimum Currency Threshold. Except as provided in Sections 2.3(c) and
2.4(c), each borrowing of or conversion to Base Rate Loans shall be in a principal amount
of $500,000 or a higher integral multiple of $100,000. Each Revolving Loan Notice (whether
telephonic or written) shall specify (i) whether the Company is requesting a Revolving Borrowing, a
conversion of Revolving Loans from one Type to the other, or a continuation of Eurodollar Rate
Loans, (ii) the requested date of the borrowing, conversion or continuation, as the case may be
(which shall be a Business Day),



 


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(iii) the principal amount of Revolving Loans to be borrowed,
converted or continued, (iv) the Type of Revolving Loans to be borrowed or to which existing Revolving Loans are to be
converted, (v) if applicable, the duration of the Interest Period with respect thereto, (vi) the
currency of the Revolving Loans to be borrowed, and (vii) if applicable, the Designated Borrower.
If the Company fails to specify a currency in a Revolving Loan Notice requesting a Borrowing, then
the Revolving Loans so requested shall be made in Dollars. If the Company fails to specify a Type
of Revolving Loan in a Revolving Loan Notice or if the Company fails to give a timely notice
requesting a conversion or continuation, then the applicable Revolving Loans shall be made as, or
converted to, Base Rate Loans; provided, however, that in the case of a failure to
timely request a continuation of Revolving Loans denominated in an Alternative Currency, such Loans
shall be continued as Eurodollar Rate Loans in such Alternative Currency with an Interest Period of
one month. Any such automatic conversion to Base Rate Loans shall be effective as of the last day
of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the
Company requests a borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Revolving Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month. No Revolving Loan may be converted into or continued as
a Revolving Loan denominated in a different currency, but instead must be prepaid in the original
currency of such Revolving Loan and reborrowed in the desired currency.



(b) Following receipt of a Revolving Loan Notice, the Administrative Agent shall promptly
notify each Lender of the applicable Borrower, the Type of the applicable Revolving Loan, the
applicable Interest Period (if applicable) and the amount and currency of its Applicable Percentage
of the applicable Revolving Loans and if no timely notice of a continuation is provided by the
Company, the Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans or continuation of Revolving Loans denominated in a currency other
than Dollars, in each case as described in the preceding subsection. In the case of a Revolving
Borrowing, each Lender shall make the amount of its Revolving Loan available to the Administrative
Agent in Same Day Funds at the Administrative Agent’s Office for the applicable currency not later
than 1:00 p.m., in the case of any Revolving Loan denominated in Dollars, and not later than the
Applicable Time specified by the Administrative Agent in the case of any Revolving Loan in an
Alternative Currency, in each case on the Business Day specified in the applicable Revolving Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section 4.2 (and, if
such Borrowing is the initial Credit Extension, Section 4.1), the Administrative Agent
shall make all funds so received available to the Company or the other applicable Borrower in like
funds as received by the Administrative Agent by crediting the account of the Company or such
Borrower, as applicable, on the books of Bank of America with the amount of such funds in
accordance with instructions provided by the Company or such Borrower, as applicable, to (and
reasonably acceptable to) the Administrative Agent.



(c) During the existence of a Default, no Loans may be requested as, converted to or continued
as Eurodollar Rate Loans (whether in Dollars or any Alternative Currency) without the consent of
the Required Lenders, and the Required Lenders may demand that any or all of the then outstanding
Eurodollar Rate Loans denominated in an Alternative Currency be redenominated into Dollars in the
amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with
respect thereto.


 


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



(e) After giving effect to all Revolving Borrowings, all conversions of Revolving Loans from
one Type to the other, and all continuations of Revolving Loans as the same Type, there shall not
be more than 10 Interest Periods in effect with respect to Revolving Loans.




2.3 Letters of Credit.




(a) The Letter of Credit Commitment.



(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the other Lenders set forth in this Section 2.3, (1) from
time to time on any Business Day during the Availability Period, to issue standby letters of credit
denominated in Dollars or in one or more Alternative Currencies (together with the Existing Letters
of Credit, each a “Letter of Credit”) for the account of the Company, and to Modify Letters
of Credit previously issued by it, in accordance with subsection (b) below, and (2) to
honor drafts under the Letters of Credit; and (B) the Lenders severally agree to participate in
Letters of Credit issued for the account of the Company; provided that the L/C Issuer shall
not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no
Lender shall be obligated to participate in, any Letter of Credit (or, if applicable, the relevant
Modification thereof) if as of the date of such L/C Credit Extension, (x) the Total Outstandings
would exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans
of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all
L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all
Swing Line Loans would exceed the amount of such Lender’s Commitment or (z) the Outstanding Amount
of all L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits,
and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit
shall be fully revolving and, accordingly, the Company may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto,
and from and after the Effective Time shall be subject to and governed by the terms and conditions
hereof.




(ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:



(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law
applicable to the L/C Issuer or any request or directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request
that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect at the Effective Time, or shall impose
upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable at the
Effective Time and which the L/C Issuer in good faith deems material to it;


 


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(B) subject to Section 2.3(b)(iii), the expiry date of such requested Letter of Credit
would occur more than twelve months after the date of issuance or last extension, unless the
Required Lenders have approved such expiry date;



(C) the expiry date of such requested Letter of Credit would occur more than one year after
the scheduled Maturity Date, unless all Lenders have approved such expiry date;



(D) the issuance of such Letter of Credit would violate one or more policies of the L/C
Issuer;



(E) such Letter of Credit is in an initial amount less than the Dollar Equivalent of $250,000
or is to be denominated in a currency other than Dollars or an Alternative Currency;



(F) the L/C Issuer does not as of the issuance date of such requested Letter of Credit issue
Letters of Credit in the requested currency;



(G) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into
arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its
sole discretion) with the Company as provided in Section 2.16 or such Lender (or both) to
eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to
Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter
of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to
which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole
discretion; or




(H) such Letter of Credit is not payable at sight.



(iii) The L/C Issuer shall be under no obligation to Modify any Letter of Credit if (A) the
L/C Issuer would have no obligation at such time to issue such Letter of Credit in its Modified
form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the
proposed Modification to such Letter of Credit.



 


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



(i) Each Letter of Credit shall be issued or Modified, as the case may be, upon the request of
the Company delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the
Company. Such Letter of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 12:00 noon at least two Business Days (or such later date and
time as the L/C Issuer may agree in a particular instance in its sole discretion)
prior to the proposed issuance date or date of Modification, as the case may be. In the case
of a request for the initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of
the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency
thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text
of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G)
such other matters as the L/C Issuer may require. In the case of a request for a Modification of
any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer (1) the Letter of Credit to be Modified; (2) the proposed
date of Modification (which shall be a Business Day); (3) the nature of the proposed Modification;
and (4) such other matters as the L/C Issuer may require. Additionally, the Company shall furnish
to the L/C Issuer and the Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or Modification as the L/C Issuer or the Administrative
Agent may reasonably require.



(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the Administrative Agent has
received a copy of such Letter of Credit Application from the Company and, if not, the L/C Issuer
will provide the Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer of
confirmation from the Administrative Agent that the requested issuance or Modification is permitted
in accordance with the terms hereof, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the account of the Company or the
applicable Subsidiary thereof or enter into the applicable Modification, as the case may be, in
each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of
Credit in an amount equal to the product of such Lender’s Applicable Percentage times the
amount of such Letter of Credit.



(iii) If the Company so requests in any applicable Letter of Credit Application, the L/C
Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has
automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than
a day (the “Nonextension Notice Date”) in each such twelve-month period to be agreed upon
at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the
Company shall not be required to make a specific request to the L/C Issuer for any such extension.
Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at
any time to an expiry date not later than one year following the Maturity Date; provided
that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that
it would have no obligation at such time to issue such Letter of Credit in its extended form under
the terms hereof (by reason of the provisions of Section 2.3(a)(ii) or otherwise), or (B)
it has received notice (which may be by telephone or in writing) on or before the day that is five
Business Days before the Nonextension Notice Date (1) from the Administrative Agent that the
Required Lenders have
elected not to permit such extension or (2) from the Administrative Agent, any Lender or the
Company that one or more of the applicable conditions specified in Section 4.2 is not then
satisfied.


 


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




(c) Drawings and Reimbursements; Funding of Participations.



(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under
such Letter of Credit, the L/C Issuer shall notify the Company and the Administrative Agent of its
receipt of such notice and the amount of the requested drawing. In the case of a Letter of Credit
denominated in an Alternative Currency, the Company shall reimburse the L/C Issuer in such
Alternative Currency, unless (A) the L/C Issuer (at its option) shall have specified in such notice
that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for
reimbursement in Dollars, the Company shall have notified the L/C Issuer promptly following receipt
of the notice of drawing that the Company will reimburse the L/C Issuer in Dollars. In the case of
any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an
Alternative Currency, the L/C Issuer shall notify the Company of the Dollar Equivalent of the
amount of the drawing promptly following the determination thereof. Not later than 11:00 a.m. on
the date of any notice by the L/C Issuer of a payment by the L/C Issuer under a Letter of Credit to
be reimbursed in Dollars, or the Applicable Time on the date of any payment by the L/C Issuer under
a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “Honor
Notice Date”), the Company shall reimburse the L/C Issuer through the Administrative Agent in
an amount equal to the amount of such drawing and in the applicable currency. If the Company fails
to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each
Lender of the Honor Notice Date, the amount of the unreimbursed drawing (expressed in Dollars in
the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an
Alternative Currency) (the “Unreimbursed Amount”), and the amount of such Lender’s
Applicable Percentage thereof. In such event, the Company shall be deemed to have requested a
Revolving Borrowing of Base Rate Loans in Dollars to be disbursed on the Honor Notice Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.2 for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.2
(other than the delivery of a Revolving Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.3(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of such notice.



(ii) Each Lender (including the Lender acting as L/C Issuer) shall upon any notice pursuant to
Section 2.3(c)(i) make funds available to the Administrative Agent for the account of the
L/C Issuer, in Dollars, at the Administrative Agent’s Office for Dollar-denominated payments in an
amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on
the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section 2.3(c)(iii),
each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the
Company in such amount. The Administrative Agent shall remit the funds so received to the L/C
Issuer in Dollars.


 


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(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving
Borrowing of Base Rate Loans because the conditions set forth in Section 4.2 cannot be
satisfied or for any other reason, the Company shall be deemed to have incurred from the L/C Issuer
on the date of the applicable payment by the L/C Issuer an L/C Borrowing in Dollars in the amount
of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at (x) prior to the Honor Notice Date,
the Base Rate, and (y) thereafter, the Default Rate. In such event, each Lender’s payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section 2.3(c)(ii) shall
be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C
Advance from such Lender in satisfaction of its participation obligation under this Section
2.3.



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



(v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the L/C
Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.3(c),
shall be absolute and unconditional and shall not be affected by any circumstance, including (A)
any set-off, counterclaim, recoupment, defense or other right which such Lender may have against
the L/C Issuer, the Company, any Subsidiary or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided that each Lender’s obligation to make
Revolving Loans pursuant to this Section 2.3(c) is subject to the conditions set forth in
Section 4.2 (other than delivery by the Company of a Revolving Loan Notice). No such
making of an L/C Advance shall relieve or otherwise impair the obligation of the Company to
reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.



(vi) If any Lender fails to make available to the Administrative Agent for the account of the
L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of
this Section 2.3(c) by the time specified in Section 2.3(c)(ii), the L/C Issuer
shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is required to the date
on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the
greater of (x) the Federal Funds Rate from time to time in effect and (y) a rate determined by the
L/C Issuer in accordance with banking industry rules on interbank compensation. A certificate of
the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest error.


 


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(d) Repayment of Participations.



(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has
received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with
Section 2.3(c), if the Administrative Agent receives for the account of the L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from
the Company or otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable
Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender’s L/C Advance was outstanding) in Dollars and in the same funds as
those received by the Administrative Agent.



(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.3(c)(i) is required to be returned under any of the circumstances
described in Section 10.6 (including pursuant to any settlement entered into by the L/C
Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the
L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned by such Lender, at a rate
per annum equal to the Federal Funds Rate from time to time in effect.



(e) Role of L/C Issuer. Each Lender and the Company agree that, in paying any drawing
under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by the Letter of Credit)
or to ascertain or inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer, any Agent-Related
Person nor any of the respective correspondents, participants or assignees of the L/C Issuer shall
be liable to any Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken
or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Letter of
Credit or Letter of Credit Application. The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided that this assumption is not intended to, and shall not, preclude the Company’s
pursuing such rights and remedies as it may have against the beneficiary or transferee at law or
under any other agreement, whether before or after any drawing by such beneficiary or transferee.
None of the L/C Issuer, any Agent-Related Person, or any of the respective correspondents,
participants or assignees of the L/C Issuer, shall be liable or responsible for any of the matters
described in clauses (i) through (vi) of Section 2.3(f); provided
that anything in such clauses to the contrary notwithstanding, the Company may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to the Company, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Company
which the Company proves were caused by the L/C Issuer’s willful misconduct or gross negligence or
the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by
the beneficiary of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C
Issuer may accept documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.


 


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(f) Obligations Absolute. The obligation of the Company to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:



(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto;



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



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



(iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft
or certificate that does not strictly comply with the terms of such Letter of Credit; or any
payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee
in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or
other representative of or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief Law;



(v) any adverse change in the relevant exchange rates or in the availability of the relevant
Alternative Currency to the Company or any Subsidiary or in the relevant currency markets
generally; or



(vi) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a defense available to,
or a discharge of, the Company.



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


 


36









 





(g) Letter of Credit Fees. The Company shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, in Dollars, a letter of credit
fee for each Letter of Credit equal to the Applicable Rate times the Dollar Equivalent of
the daily maximum amount available to be drawn under such Letter of Credit; provided that,
upon the request of the Required Lenders while any Event of Default exists, the rate per annum at
which all Letter of Credit fees are calculated shall be increased by 2%; and provided,
further, any Letter of Credit fees otherwise payable for the account of a Defaulting Lender
with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash
Collateral satisfactory to the L/C Issuer pursuant to Section 2.16 shall be payable, to the
maximum extent permitted by applicable Law, to the other Lenders in accordance with the upward
adjustments in their respective Applicable Percentages allocable to such Letter of Credit pursuant
to Section 2.17(a)(iv), with the balance of such fee, if any, payable to the L/C Issuer for
its own account. Such letter of credit fees shall be computed on a quarterly basis in arrears.
Such letter of credit fees shall be due and payable (x) on the first Business Day of each January,
April, July and October, commencing January 3, 2011 (or, if later, on the first such date to occur
after the issuance of such Letter of Credit), (y) on the earlier of (i) the scheduled Maturity Date
and (ii) the date on which the Obligations are accelerated pursuant to Section 8.2, and (z)
thereafter on demand. If there is any change in the Applicable Rate during any quarter, the daily
maximum amount of each standby Letter of Credit shall be computed and multiplied by the Applicable
Rate separately for each period during such quarter that such Applicable Rate was in effect.



(h) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Company shall pay directly to the L/C Issuer for its own account, in Dollars, the Dollar Equivalent
of such fronting fees with respect to Letters of Credit as specified in a separate fee letter
between the Company and the L/C Issuer. In addition, the Company shall pay directly to the L/C
Issuer for its own account the Dollar Equivalent of the customary issuance, presentation,
amendment, extension and other processing fees, and other standard costs and charges, of the L/C
Issuer relating to letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand in Dollars and are nonrefundable.



(i) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the L/C
Issuer and the Company when a Letter of Credit is issued (including any such agreement applicable
to an Existing Letter of Credit), (i) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce at the time of
issuance shall apply to each Existing Letter of Credit that is a commercial letter of credit and
(ii) the rules of the ISP shall apply to each other Letter of Credit.



(j) Conflict with Letter of Credit Application. In the event of any conflict between
the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.



(k) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Company shall be obligated to reimburse the L/C Issuer hereunder for any and
all drawings under such Letter of Credit. The Company hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the Company, and that
the Company’s business derives substantial benefits from the businesses of such Subsidiaries.


 


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2.4 Swing Line Loans.



(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender may (in its sole and absolute discretion) make a portion of the credit otherwise
available to the Company under the Aggregate Commitments by making swing line loans in Dollars
(each such loan, a “Swing Line Loan”) to the Company from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at any time outstanding the
amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when
aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Loans and L/C
Obligations of the Lender acting as Swing Line Lender may exceed the amount of such Lender’s
Commitment; provided that after giving effect to any Swing Line Loan, (i) the Total
Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount
of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and
provided, further, that the Company shall not use the proceeds received by it in
respect of any new Swing Line Loan to refinance any outstanding Swing Line Loan. Within the
foregoing limits, and subject to the other terms and conditions hereof, the Company may, subject to
the agreement of the Swing Line Lender, borrow under this Section 2.4, prepay under
Section 2.5, and reborrow under this Section 2.4. Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount
equal to the product of such Lender’s Applicable Percentage times the amount of such Swing
Line Loan.



(b) Borrowing Procedures. Each Swing Line Loan, each conversion of a Swing Line Loan
from one Type to the other, and each continuation of a Swing Line Loan as an IBOR Rate Loan shall
be made upon the Company’s irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender
and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall
specify (i) the amount to be borrowed, converted or continued, which shall be an integral multiple
of $500,000, (ii) the Type of Swing Line Loan to be borrowed or which an existing Swing Line Loan
is to be converted or continued, (iii) the requested borrowing, continuation or conversion date,
which shall be a Business Day, and (iv) if applicable, the duration of the Interest Period with
respect thereto. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Company. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. If the Company fails to specify a Type of
Swing Line Loan in a Swing Line Loan Notice or if the Company fails to give a timely notice
requesting a conversion or continuation, then the applicable Swing Line Loan shall be made as, or
converted to, a Base Rate Loan. Any such automatic conversion to a Base Rate Loan shall be
effective as of the last day of the Interest Period then in effect with respect to the applicable
IBOR Rate Loan. If the Company requests a borrowing of, conversion to, or continuation of IBOR
Rate
Loans in any such Swing Line Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period ending on the Business Day immediately following the
first day of such Interest Period. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any Lender) prior to
11:00 a.m. on the date of a proposed Swing Line Borrowing (A) directing the Swing Line Lender not
to make the requested Swing Line Loan as a result of the limitations set forth in the proviso to
the first sentence of Section 2.4(a), or (B) that one or more of the applicable conditions
specified in Article IV is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender may (in its sole and absolute discretion), not later than 12:00 noon
on the borrowing date specified in the applicable Swing Line Loan Notice, make the amount of its
Swing Line Loan available to the Company at its office by crediting the account of the Company on
the books of the Swing Line Lender in Same Day Funds.


 


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(c) Refinancing of Swing Line Loans.



(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on
behalf of the Company (which hereby irrevocably authorizes the Swing Line Lender to so request on
its behalf), that each Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable
Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in
writing (which written request shall be deemed to be a Revolving Loan Notice for purposes hereof)
and in accordance with the requirements of Section 2.2, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans, but subject to the
unutilized portion of the Aggregate Commitments and the conditions set forth in Section
4.2. The Swing Line Lender shall furnish the Company with a copy of the applicable Revolving
Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall
make an amount equal to its Applicable Percentage of the amount specified in such Revolving Loan
Notice available to the Administrative Agent in Same Day Funds (and the Administrative Agent may
apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of
the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments not
later than 10:00 a.m. on the day specified in such Revolving Loan Notice, whereupon, subject to
Section 2.4(c)(ii), each Lender that so makes funds available shall be deemed to have made
a Revolving Loan that is a Base Rate Loan to the Company in such amount. The Administrative Agent
shall remit the funds so received to the Swing Line Lender.



(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Borrowing,
in accordance with Section 2.4(c)(i), the request for Base Rate Loans submitted by the
Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that
each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s
payment to the Administrative Agent for the account of the Swing Line Lender pursuant to
Section 2.4(c)(i) shall be deemed payment in respect of such participation.



(iii) If any Lender fails to make available to the Administrative Agent for the account of the
Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.4(c) by the time specified in Section 2.4(c)(i), the
Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available to the Swing Line
Lender at a rate per annum equal to the greater of (x) the Federal Funds Rate from time to time in
effect and (y) a rate determined by the Swing Line Lender in accordance with banking industry rules
on interbank compensation. A certificate of the Swing Line Lender submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this clause (iii) shall
be conclusive absent manifest error.


 


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(iv) Each Lender’s obligation to make Revolving Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.4(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line
Lender, the Company or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided that each Lender’s obligation to make Revolving Loans
pursuant to this Section 2.4(c) is subject to the conditions set forth in Section
4.2. No such funding of risk participations shall relieve or otherwise impair the obligation
of the Company to repay Swing Line Loans, together with interest as provided herein.




(d) Repayment of Participations.



(i) At any time after any Lender has purchased and funded a risk participation in a Swing Line
Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Lender its Applicable Percentage of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of time during which such
Lender’s risk participation was funded) in the same funds as those received by the Swing Line
Lender.



(ii) If any payment received by the Swing Line Lender in respect of principal or interest on
any Swing Line Loan is required to be returned by the Swing Line Lender under any of the
circumstances described in Section 10.6 (including pursuant to any settlement entered into
by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its
Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned, at a rate per annum equal to the Federal
Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line
Lender.



(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Company for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Loan or risk participation pursuant to this Section 2.4 to refinance
such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable
Percentage shall be solely for the account of the Swing Line Lender.



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


 


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2.5 Prepayments.



(a) Each Borrower may, upon notice from the Company to the Administrative Agent, at any time
or from time to time voluntarily prepay Revolving Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Administrative Agent not
later than 10:00 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans denominated in Dollars, (B) four Business Days prior to any date of prepayment of Eurodollar
Rate Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate
Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount equal to the
Minimum Currency Threshold; and (iii) any prepayment of Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the
entire principal amount thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Revolving Loans to be prepaid. The Administrative
Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of
such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Company,
the applicable Borrower shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest thereon, together with any additional amounts required
pursuant to Section 3.4. Subject to Section 2.17, each such prepayment shall be
applied to the Revolving Loans of the Lenders in accordance with their respective Applicable
Percentages.



(b) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 10:00 a.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by the Company, the
Company shall make such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein.



(c) If the Administrative Agent notifies the Company at any time that the Total Outstandings
at such time exceed an amount equal to 105% of the Aggregate Commitments then in effect, then,
within two Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or the
Company shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce
such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate
Commitments then in effect; provided, however, that, subject to the provisions of
Section 2.16(a), the Company shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.5(c) unless after the prepayment in full of the
Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative
Agent may, at any time and from time to time after the initial deposit of such Cash Collateral,
request that additional Cash Collateral be provided in order to protect against the results of
further exchange rate fluctuations and, following such request, the Company shall, within two
Business Days after receipt of such request, Cash Collateralize the L/C Obligations in the amount
so requested.



(d) If the Administrative Agent notifies the Company at any time that the Outstanding Amount
of all Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of
the Alternative Currency Sublimit then in effect, then, within two Business
Days after receipt of such notice, the Borrowers shall prepay Loans in an aggregate amount
sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed
100% of the Alternative Currency Sublimit then in effect.



 


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2.6 Termination or Reduction of Commitments. The Company may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 10:00 a.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not terminate or reduce the
Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder,
the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving effect to
any reduction of the Aggregate Commitments, the Alternative Currency Sublimit, the Swing Line
Sublimit or the Designated Borrower Sublimit exceeds the amount of the Aggregate Commitments, such
sublimit shall be automatically reduced by the amount of such excess. Other than pursuant to the
immediately preceding sentence, the amount of any such Aggregate Commitment reduction shall not be
applied to the Alternative Currency Sublimit, the Letter of Credit Sublimit or the Designated
Borrower Sublimit unless otherwise specified by the Company. The Administrative Agent will
promptly notify the Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be applied to the Commitment of each
Lender according to its Applicable Percentage. All commitment fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the effective date of such
termination.




2.7 Repayment of Loans.



(a) Each Borrower shall repay to the Lenders on the Maturity Date the aggregate principal
amount of Revolving Loans made to such Borrower outstanding on such date.



(b) The Company shall repay each Swing Line Loan on the earlier of (i) one Business Day after
demand by the Swing Line Lender and (ii) the Maturity Date.




2.8 Interest.



(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan
shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate
per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate
plus (in the case of a Eurodollar Rate Loan of any Lender which is lent from a Lending
Office in the United Kingdom or a Participating Member State) the Mandatory Cost; (ii) each Base
Rate Loan (including each applicable Swing Line Loan) shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Rate and (iii) each IBOR Rate Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal
to the IBOR Rate plus the Applicable Rate; provided that if the Swing Line Lender
is deemed to have requested that each Lender fund its risk participation in any Swing Line Loan
pursuant to Section 
2.4(c)(ii), then commencing on the date of such deemed request, such Swing Line Loan
shall bear interest at the Base Rate plus the Applicable Rate.


 


42









 





(b) If any amount payable by any Borrower under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by acceleration or
otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
Furthermore, upon the request of the Required Lenders while any Event of Default exists, the
Borrowers shall pay interest on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest
on past due interest) shall be due and payable upon demand.



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




2.9 Fees.



In addition to certain fees described in subsections (g) and (h) of
Section 2.3:



(a) Non-Use Fee. The Company shall pay to the Administrative Agent for the account of
each Lender in accordance with its Applicable Percentage, a non-use fee in Dollars equal to the
Applicable Rate times the actual daily amount by which the Aggregate Commitments (as
reduced in accordance with Section 2.6, increased in accordance with Section 2.14
or adjusted in accordance with Section 2.17) exceed the sum of (i) the Outstanding Amount
of Revolving Loans and (ii) the Outstanding Amount of L/C Obligations. The non-use fee shall
accrue at all times during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on
the first Business Day of each January, April, July and October, commencing on January 3, 2011, and
on the Maturity Date. The non-use fee shall be calculated quarterly in arrears, and (i) if there
is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect and (ii) if there is an increase or a reduction in the Aggregate
Commitments in accordance with Section 2.6, the actual daily amount shall be computed and
multiplied by the Aggregate Commitments separately for each period during such quarter that the
Aggregate Commitments were available.



(b) Other Fees. (i) The Company shall pay to the Arranger and the Administrative
Agent for their own respective accounts fees in Dollars in the amounts and at the times specified
in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever.




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


 


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2.10 Computation of Interest and Fees. All computations of interest for Base Rate
Loans shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the basis of a 360 day year
and actual days elapsed (which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365 day year). Interest shall accrue on each Loan for the day on which
the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid; provided that any Loan that is repaid on the same day on
which it is made shall, subject to Section 2.12(a), bear interest for one day.




2.11 Evidence of Debt.



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



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


 


44









 






2.12 Payments Generally.



(a) All payments to be made by the Borrowers shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and
except with respect to principal of and interest on Loans denominated in an Alternative Currency,
all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s
Office in Dollars and in Same Day Funds not later than 12:00 noon on the date specified herein.
Except as otherwise expressly provided herein, all
payments by the Borrowers hereunder with respect to principal and interest on Loans
denominated in an Alternative Currency shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s
Office in such Alternative Currency and in Same Day Funds not later than the Applicable Time
specified by the Administrative Agent on the dates specified herein. Without limiting the
generality of the foregoing, the Administrative Agent may require that any payments due under this
Agreement be made in the United States. If, for any reason, any Borrower is prohibited by any Law
from making any required payment hereunder in an Alternative Currency, such Borrower shall make
such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The
Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other
applicable share as provided herein) of such payment in like funds as received by wire transfer to
such Lender’s Lending Office. All payments received by the Administrative Agent (i) after 12:00
p.m., in the case of payments in Dollars, or (ii) after the Applicable Time specified by the
Administrative Agent in the case of payments in an Alternative Currency, shall in each case be
deemed received on the next succeeding Business Day and any applicable interest or fee shall
continue to accrue.



(b) If any payment to be made by any Borrower shall come due on a day other than a Business
Day, payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.



(c) Unless any Borrower or any Lender has notified the Administrative Agent prior to the date
any payment is required to be made by it to the Administrative Agent hereunder, that such Borrower
or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume
that such Borrower or such Lender, as the case may be, has timely made such payment and may (but
shall not be so required to), in reliance thereon, make available a corresponding amount to the
Person entitled thereto. If and to the extent that such payment was not in fact made to the
Administrative Agent in Same Day Funds, then:



(i) if any Borrower failed to make such payment, each Lender shall forthwith on demand repay
to the Administrative Agent the portion of such assumed payment that was made available to such
Lender in Same Day Funds, together with interest thereon in respect of each day from the date such
amount was made available by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in Same Day Funds, at the greater of (x) the Federal Funds Rate
from time to time in effect and (y) a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation; and



(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to
the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for
the period from the date such amount was made available by the Administrative Agent to a Borrower
to the date such amount is recovered by the Administrative Agent (the “Compensation
Period”) at a rate per annum equal to the greater of (x) the Federal Funds Rate from time to
time in effect and (y) a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender’s Revolving Loan included in the applicable
Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s
demand therefor, the Administrative Agent may make a
demand therefor upon the applicable Borrower, and such Borrower shall pay such amount to the
Administrative Agent, together with interest thereon for the Compensation Period at a rate per
annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall
be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any
rights which the Administrative Agent or any Borrower may have against any Lender as a result of
any default by such Lender hereunder.


 


45









 





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



(d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by
such Lender to any Borrower as provided in the foregoing provisions of this Article II, and
such funds are not made available to such Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV are not satisfied or
waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in
like funds as received from such Lender) to such Lender, without interest.



(e) The obligations of the Lenders hereunder to make Revolving Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of
any Lender to make any Revolving Loan or to fund any such participation on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so make its Revolving
Loan or purchase its participation.



(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in
any particular place or manner or to constitute a representation by any Lender that it has obtained
or will obtain the funds for any Loan in any particular place or manner.



2.13 Sharing of Payments. If, other than as expressly provided elsewhere herein, any
Lender shall obtain on account of the Revolving Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it, any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent
of such fact, and (b) purchase from the other Lenders such participations in the Revolving Loans
made by them and/or such subparticipations in the participations in L/C Obligations or Swing Line
Loans held by them, as the case may be, as shall be necessary to cause such purchasing Lender to
share the excess payment in respect of such Revolving Loans or such participations, as the case may
be, pro rata with each of them; provided that (x) if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender under any of the circumstances described
in Section 10.6 (including pursuant to any settlement entered into by the purchasing Lender
in its discretion), such purchase shall to that extent be rescinded and each other Lender shall
repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to
such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying
Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered, without further interest thereon and (y) the



 


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provisions of this Section shall
not be construed to apply to (I) any payment made by or on
behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the
application of funds arising from the existence of a Defaulting Lender), (II) the application of
Cash Collateral provided for in Section 2.16, or (III) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Revolving Loans or
subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than
an assignment to a Borrower or any Affiliate thereof (as to which the provisions of this Section
shall apply). Each Loan Party agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off, but subject to Section 10.9) with respect to such participation as
fully as if such Lender were the direct creditor of such Loan Party in the amount of such
participation. The Administrative Agent will keep records (which shall be conclusive and binding
in the absence of manifest error) of participations purchased under this Section and will in each
case notify the Lenders following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section shall from and after such purchase have the right to give
all notices, requests, demands, directions and other communications under this Agreement with
respect to the portion of the Obligations purchased to the same extent as though the purchasing
Lender were the original owner of the Obligations purchased.




2.14 Increase in Commitments.



(a) The Company may, from time to time, by means of a letter delivered to the Administrative
Agent substantially in the form of Exhibit K, request that the Aggregate Commitments be
increased; provided that (i) any such increase in the Aggregate Commitments shall be in the
amount of $25,000,000 or a higher integral multiple of $5,000,000 and (ii) the aggregate amount of
all such increases shall not exceed $200,000,000.



(b) Any increase in the Aggregate Commitments may be effected by (i) increasing the Commitment
of one or more Lenders that have agreed to such increase and/or (ii) subject to clause (c),
adding one or more commercial banks or other Persons as a party hereto (each an “Additional
Lender”) with a Commitment in an amount agreed to by any such Additional Lender.



(c) Any increase in the Aggregate Commitments pursuant to this Section 2.14 shall be
effective three Business Days (or such other period agreed to by the Administrative Agent, the
Company and, as applicable, each Lender that has agreed to increase its Commitment and each
Additional Lender) after the later to occur of (i) the date on which the Company has delivered to
the Administrative Agent a certified copy of resolutions of its board of directors, in form and
substance reasonably acceptable to the Administrative Agent, authorizing such increase and (ii) the
Administrative Agent has received and accepted the applicable increase letter in the form of
Annex 1 to Exhibit K (in the case of an increase in the Commitment of an existing
Lender) or assumption letter in the form of Annex 2 to Exhibit K (in the case of
the addition of an Additional Lender).



(d) No Additional Lender shall be added as a party hereto without the written consent of the
Administrative Agent, the L/C Issuer and the Swing Line Lender (which consents shall not be
unreasonably withheld or delayed), and no increase in the Aggregate Commitments may be effected
pursuant to clause (b) above if a Default exists.


 


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(e) The Administrative Agent shall promptly notify the Company and the Lenders of any increase
in the amount of the Aggregate Commitments pursuant to this Section 2.14 and of the
Commitment and Applicable Percentage of each Lender after giving effect thereto. The Company
acknowledges that, in order to maintain Revolving Loans in accordance with each Lender’s Applicable
Percentage, a reallocation of the Commitments as a result of a non-pro-rata increase in the
Aggregate Commitments may require prepayment or conversion of all or portions of certain Revolving
Loans on the date of such increase (and any such prepayment or conversion shall be without premium
or penalty but subject to the provisions of Section 3.4).




(f) This Section shall supersede any provision in Section 10.1 to the contrary.



2.15 Designated Borrowers. (a) The Company may at any time, upon not less than 15
Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may
be agreed by the Administrative Agent in its sole discretion), designate any Subsidiary of the
Company (an “Applicant Borrower”) as a Designated Borrower to receive Loans hereunder by
delivering to the Administrative Agent (which shall promptly deliver counterparts thereof to each
Lender) a duly executed notice and agreement in substantially the form of Exhibit G (a
“Designated Borrower Request and Assumption Agreement”). The parties hereto acknowledge
and agree that prior to any Applicant Borrower becoming entitled to utilize the credit facilities
provided for herein, the Administrative Agent and the Lenders shall have received such supporting
resolutions, incumbency certificates, opinions of counsel and other documents or information, in
form, content and scope reasonably satisfactory to the Administrative Agent, as may be required by
the Administrative Agent or any Lender in their sole discretion, and Notes signed by such new
Borrowers to the extent any Lenders so require. If the Administrative Agent and each of the
Lenders agree that an Applicant Borrower shall be entitled to receive Loans hereunder, then
promptly following receipt of all such requested resolutions, incumbency certificates, opinions of
counsel and other documents or information, the Administrative Agent shall send a notice in
substantially the form of Exhibit H (a “Designated Borrower Notice”) to the Company
and the Lenders specifying the effective date upon which the Applicant Borrower shall constitute a
Designated Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such
Designated Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and
each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all
purposes of this Agreement; provided that no Revolving Loan Notice or Letter of Credit
Application may be submitted by or on behalf of such Designated Borrower until the date five
Business Days after such effective date.



(b) The Obligations of the Company and each Designated Borrower that is a Domestic Subsidiary
shall be joint and several in nature. The Obligations of all Designated Borrowers that are Foreign
Subsidiaries shall be several in nature.



(c) Each Subsidiary of the Company that becomes a “Designated Borrower” pursuant to this
Section 2.15 hereby irrevocably appoints the Company as its agent for all purposes relevant
to this Agreement and each of the other Loan Documents, including (i) the giving and receipt of
notices, (ii) the execution and delivery of all documents, instruments and certificates
contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any
Loans made by the Lenders to any such Designated Borrower hereunder. Any acknowledgment, consent,
direction, certification or other action which might otherwise be valid or effective only
if given or taken by all Borrowers, or by each Borrower acting singly, shall be valid and
effective if given or taken only by the Company, whether or not any such other Borrower joins
therein. Any notice, demand, consent, acknowledgement, direction, certification or other
communication delivered to the Company in accordance with the terms of this Agreement shall be
deemed to have been delivered to each Designated Borrower.


 


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(d) The Company may from time to time, upon not less than 15 Business Days’ notice from the
Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative
Agent in its sole discretion), terminate a Designated Borrower’s status as such, provided that
there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by
such Designated Borrower on account of any Loans made to it, as of the effective date of such
termination. The Administrative Agent will promptly notify the Lenders of any such termination of a
Designated Borrower’s status.




2.16 Cash Collateral.



(a) Certain Credit Support Events. Upon the request of the Administrative Agent or
the L/C Issuer (i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Maturity
Date, any L/C Obligation for any reason remains outstanding, the Company shall, in each case,
immediately upon written notice from the Administrative Agent Cash Collateralize the then
Outstanding Amount of all L/C Obligations. In addition, if the Administrative Agent notifies the
Company at any time that the Outstanding Amount of all L/C Obligations at such time exceeds 105% of
the Letter of Credit Sublimit then in effect, then, within two Business Days after receipt of such
notice, the Company shall Cash Collateralize the L/C Obligations in an amount equal to the amount
by which the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit Sublimit. At
any time that there shall exist a Defaulting Lender, immediately upon the request of the
Administrative Agent, the L/C Issuer or the Swing Line Lender, the Company shall deliver to the
Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after
giving effect to Section 2.17(a)(iv) and any Cash Collateral provided by the Defaulting
Lender). The Administrative Agent may, at any time and from time to time after the initial deposit
of Cash Collateral, request that additional Cash Collateral be provided in order to protect against
the results of exchange rate fluctuations and, following such request, the Company shall, within
two Business Days after receipt of such request, Cash Collateralize the L/C Obligations in the
amount so requested.



(b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America. The Company, and to the extent provided by any Lender, such Lender,
hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the L/C Issuer and the Lenders (including the Swing Line Lender), and agrees
to maintain, a first priority security interest in all such cash, deposit accounts and all balances
therein, and in all proceeds of the foregoing, all as security for the obligations to which such
Cash Collateral may be applied pursuant to Section 2.16(c). If at any time the
Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person
other than the Administrative Agent as herein provided, or that the total amount of such Cash
Collateral is less than the applicable Fronting Exposure and other obligations secured
thereby, the Company or the relevant Defaulting Lender will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an
amount sufficient to eliminate such deficiency.


 


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(c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.16 or Sections 2.5,
2.17 or 8.2 in respect of Letters of Credit or Swing Line Loans shall be held and
applied to the satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to fund
participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any
interest accrued on such obligation) and other obligations for which the Cash Collateral was so
provided, prior to any other application of such property as may be provided for herein. 



(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee
following compliance with Section 10.7(b)) or (ii) the Administrative Agent’s good faith
determination that there exists excess Cash Collateral; provided, however, (x) that Cash
Collateral furnished by or on behalf of a Loan Party shall not be released during the continuance
of a Default or Event of Default (and following application as provided in this Section
2.16 may be otherwise applied to any other obligations owing hereunder), and (y) the Person
providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree that
Cash Collateral shall not be released but instead held to support future anticipated Fronting
Exposure or other obligations, although no such Person is under any obligation whatsoever to do so.



2.17 Defaulting Lenders. (a) (a) Adjustments. Notwithstanding anything to
the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until
such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable
Law:




(i) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 10.1.




(ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 10.9), shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment of any amounts
owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuer
or Swing Line Lender hereunder; third, if so determined by the Administrative Agent or
requested by the L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future
funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or
Letter of Credit; fourth, as


 


50









 






the
Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as
determined by the Administrative Agent; fifth, if so determined by the Administrative Agent
and the Company, to be held in a non-interest bearing deposit account and released in order
to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth,
to the payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a
result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C
Issuer or Swing Line Lender against that Defaulting Lender as a result of that Defaulting
Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or
Event of Default exists, to the payment of any amounts owing to the Borrower as a result of
any judgment of a court of competent jurisdiction obtained by the Borrower against that
Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under
this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of
competent jurisdiction; provided that if (x) such payment is a payment of the
principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender
has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made at
a time when the conditions set forth in Section 4.2 were satisfied or waived, such
payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all
non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any
Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any payments, prepayments or
other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay
amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section
2.17(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each
Lender irrevocably consents hereto.




(iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to
receive any non-use fee pursuant to Section 2.9(a) for any period during which that
Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee
that otherwise would have been required to have been paid to that Defaulting Lender) and (y)
shall be limited in its right to receive Letter of Credit Fees as provided in Section
2.3(g).




(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.3 and
2.4, the “Applicable Percentage” of each non-Defaulting Lender shall be computed
without giving effect to the Commitment of that Defaulting Lender; provided, that,
(i) each such reallocation shall be given effect only if, at the date the applicable Lender
becomes a Defaulting Lender, no Default or Event of Default exists; and (ii) the aggregate
obligation of each non-Defaulting Lender to acquire, refinance or fund participations in
Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of
(1) the Commitment of that non-Defaulting Lender minus (2) the aggregate Outstanding
Amount of the Revolving Loans of that Lender.


 


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(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swing Line
Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should
no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify
the parties hereto, whereupon as of the effective date specified in such notice and subject to
any conditions set forth therein (which may include arrangements with respect to any Cash
Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans
of the other Lenders or take such other actions as the Administrative Agent may determine to be
necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit
and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their
Applicable Percentages (without giving effect to Section 2.17(a)(iv)), whereupon that
Lender will cease to be a Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while
that Lender was a Defaulting Lender; and provided, further, that except to the
extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting
Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising
from that Lender’s having been a Defaulting Lender.



(c) Notice of Determination of Defaulting Lender. Upon any determination by the
Administrative Agent that any Lender constitutes a Defaulting Lender, the Administrative Agent
shall promptly provide the Company with notice of such determination; provided, that any
failure to so notify the Company of such determination shall not have any effect on the status of
such Lender as a Defaulted Lender.



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY





3.1 Taxes.



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



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


 


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



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



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


 


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(ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and the L/C
Issuer shall, and does hereby, indemnify each Borrower and the Administrative Agent, and shall make
payment in respect thereof within 10 days after demand therefor, against any and all Taxes and any
and all related losses, claims, liabilities, penalties, interest and expenses (including the fees,
charges and disbursements of any counsel for such Borrower or the Administrative Agent) incurred by
or asserted against such Borrower or the
Administrative Agent by any Governmental Authority as a result of the failure by such Lender
or the L/C Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or
deficiency of, any documentation required to be delivered by such Lender or the L/C Issuer, as the
case may be, to such Borrower or the Administrative Agent pursuant to subsection (e). Each Lender
and the L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all
amounts at any time owing to such Lender or the L/C Issuer, as the case may be, under this
Agreement or any other Loan Document against any amount due to the Administrative Agent under this
clause (ii). The agreements in this clause (ii) shall survive the resignation and/or replacement
of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender or the
L/C Issuer, the termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all other Obligations.



(d) Evidence of Payments. Upon request by a Borrower or the Administrative Agent, as
the case may be, after any payment of Taxes by such Borrower or by the Administrative Agent to a
Governmental Authority as provided in this Section 3.1, such Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to such Borrower, as the case may
be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of any return required by Laws to report such payment or other evidence of
such payment reasonably satisfactory to such Borrower or the Administrative Agent, as the case may
be.



(e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Company and to the Administrative Agent, at the time or times prescribed by applicable Laws or when
reasonably requested by the Company or the Administrative Agent (and from time to time thereafter
upon the request of the Company on behalf of such Borrower or the Administrative Agent, but only if
such Foreign Lender is legally entitled to do so), such properly completed and executed
documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and
such other reasonably requested information as will permit such payments to be made without or at a
reduced rate of withholding, and as will permit the Company or the Administrative Agent, as the
case may be, to determine (A) whether or not payments made by the respective Borrowers hereunder or
under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such Lender by the
respective Borrowers pursuant to this Agreement or otherwise to establish such Lender’s status for
withholding tax purposes in the applicable jurisdictions.



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



(A) any Lender that is a “United States person” within the meaning of Section 7701(a)(30) of
the Code shall deliver to the Company and the Administrative Agent executed originals of Internal
Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws
or reasonably requested by the Company on behalf of such Borrower or the Administrative Agent as
will permit such payments to be made without or at a reduced rate of withholding, and as will
enable such Borrower or the Administrative Agent, as the case may be, to determine whether or not
such Lender is subject to backup withholding or information reporting requirements; and


 


54









 





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



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




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



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



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



e. if a payment made to a Foreign Lender under any Loan Document would be subject to any
withholding Taxes as a result of such Foreign Lender’s failure to comply with the requirements of
FATCA (including those contained in Section 1471(b) or 1472(b) of the Code), such documentation
prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and
such additional documentation reasonably requested by the Borrower or the Administrative Agent as
may be necessary for the Borrower or the Administrative Agent to comply with its obligations under
FATCA, to determine that such Foreign Lender has or has not complied with such Foreign Lender’s
obligations under FATCA or to determine the amount to deduct and withhold from such payment in
respect of FATCA, or



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



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


 


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(iv) Each of the Borrowers shall promptly deliver (to the extent such Borrower is legally
entitled to do so) to the Administrative Agent or any Lender, as the Administrative Agent or such
Lender shall reasonably request, on or prior to the date hereof (or such later date on which it
first becomes a Borrower), and in a timely fashion thereafter, such documents and forms required by
any relevant taxing authorities under the Laws of any jurisdiction, duly executed and completed by
such Borrower, as are required to be furnished by such Lender or the Administrative Agent under
such Laws in connection with any payment by the Administrative Agent or any Lender of Taxes or
Other Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction.



(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as
the case may be. If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by any Borrower or with respect to which any Borrower has paid additional amounts
pursuant to this Section, it shall pay to such Borrower an amount equal to such refund (but only to
the extent of indemnity payments made, or additional amounts paid, by such Borrower under this
Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses and net of any loss or gain realized in the conversion of such funds from or
to another currency (which conversion, if any, shall be effected by the Administrative Agent in
accordance with its normal banking procedures) incurred by the Administrative Agent, such Lender or
the L/C Issuer, as the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided that each Borrower,
upon the request of the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the
amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to
such Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to any Borrower or any other Person.



3.2 Illegality. If any Lender determines that any Law has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurodollar Rate Loans (whether denominated in Dollars or
an Alternative Currency) or, in the case of the Swing Line Lender, IBOR Rate Loans, or to determine
or charge interest rates based upon the Eurodollar Rate or, in the case of the Swing Line Lender,
the IBOR Rate, or any Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars or any Alternative Currency in the
applicable interbank market, then, on notice thereof by such Lender to the Company through the
Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans in
the affected currency or currencies or, in the case of
Eurodollar Rate Loans or IBOR Rate Loans in Dollars, to convert Base Rate Loans to Eurodollar
Rate Loans, shall be suspended until such Lender notifies the Administrative Agent and the Company
that the circumstances giving rise to such determination no longer exist. Upon receipt of such
notice, the Borrowers shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay or, if applicable and such Loans are denominated in Dollars, convert all such
Eurodollar Rate Loans or IBOR Rate Loans, as applicable, of such Lender to Base Rate Loans, either
on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain
such Eurodollar Rate Loans or IBOR Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans or IBOR Rate Loans. Upon any such
prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or
converted.


 


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3.3 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof
that (a) deposits (whether in Dollars or an Alternative Currency) are not being offered to banks in
the applicable offshore interbank market for such currency for the applicable amount and Interest
Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining
the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate
Loan (whether denominated in Dollars or an Alternative Currency), or (c) the Eurodollar Rate for
any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately
and fairly reflect the cost to such Lenders of funding such Eurodollar Rate Loan, the
Administrative Agent will promptly so notify the Company and each Lender. If the Swing Line Lender
determines that for any reason adequate and reasonable means do not exist for determining the IBOR
Rate for any requested Interest Period with respect to a proposed IBOR Rate Loan, or that the IBOR
Rate for any requested Interest Period with respect to a proposed IBOR Rate Loan does not
adequately and fairly reflect the cost to the Swing Line Lender of funding such Loan, the
Administrative Agent will promptly so notify the Company. Thereafter, the obligation of the
Lenders to make or maintain Eurodollar Rate Loans in the affected currency or currencies or the
Swing Line Lender to make or maintain IBOR Rate Loans, as the case may be, shall be suspended until
the Administrative Agent (upon the instruction of the Required Lenders or the Swing Line Lender, as
applicable) revokes such notice. Upon receipt of such notice, the Company may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans in the affected
currency or currencies or IBOR Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Revolving Borrowing or a Swing Line Borrowing of Base Rate Loans in
the amount specified therein.




3.4 Increased Costs; Reserves on Eurodollar Rate Loans.




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



(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except (A) any reserve
requirement and (B) the requirements of the Bank of England and the Financial Services
Authority or the European Central Bank reflected in the Mandatory Cost, other than as set forth
below) or the L/C Issuer;


 


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(ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Eurodollar
Rate Loan or IBOR Rate Loan made by it, or change the basis of taxation of payments to such Lender
or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 3.1 or any Excluded Tax payable by such Lender or the L/C Issuer);



(iii) result in the failure of the Mandatory Cost, as calculated hereunder, to represent the
cost to any Lender of complying with the requirements of the Bank of England and/or the Financial
Services Authority or the European Central Bank in relation to its making, funding or maintaining
Eurodollar Rate Loans; or



(iv) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans or IBOR Rate Loans
made by such Lender or any Letter of Credit or participation therein;



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan or IBOR Rate Loan (or of maintaining its obligation to make
any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in,
issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or
to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender or the L/C Issuer, the Company will pay (or cause the applicable Designated
Borrower to pay) to such Lender or the L/C Issuer, as the case may be, such additional amount or
amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional
costs incurred or reduction suffered.



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


 


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



(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that no Borrower shall be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies
the Company of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).



(e) Additional Reserve Requirements. The Company shall pay (or cause the applicable
Designated Borrower to pay) to each Lender, (i) as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or including Eurodollar funds
or deposits (currently known as “Eurodollar liabilities”), additional interest on the
unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender and, in the case of the Swing Line Lender, the actual costs
of such reserves allocated to the applicable IBOR Rate Loan by such Lender (in each case as
determined by such Lender in good faith, which determination shall be conclusive), and (ii) as long
as such Lender shall be required to comply with any reserve ratio requirement or analogous
requirement of any other central banking or financial regulatory authority imposed in respect of
the maintenance of the Commitments or the funding of the Eurodollar Rate Loans or, in the case of
the Swing Line Lender, IBOR Rate Loans, such additional costs (expressed as a percentage per annum
and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs
allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith,
which determination shall be conclusive), which in each case shall be due and payable on each date
on which interest is payable on such Loan, provided the Company shall have received at
least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest
or costs from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest
Payment Date, such additional interest or costs shall be due and payable 10 days from receipt of
such notice.


 


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



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



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



(c) any failure by any Borrower to make payment of any Loan or drawing under any Letter of
Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled due date
or any payment thereof in a different currency; or



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



including any loss of anticipated profits, any foreign exchange losses and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from
fees payable to terminate the deposits from which such funds were obtained or from the performance
of any foreign exchange contract. The Company shall also pay (or cause the applicable Designated
Borrower to pay) any customary administrative fees charged by such Lender in connection with the
foregoing.



For purposes of calculating amounts payable by the Company (or the applicable Designated Borrower)
to the Lenders under this Section 3.5, each Lender shall be deemed to have funded each
Eurodollar Rate Loan or IBOR Rate Loan, as applicable, made by it at the Eurodollar Rate or IBOR
Rate, as applicable, for such Loan by a matching deposit or other borrowing in the offshore
interbank market for such currency for a comparable amount and for a comparable period, whether or
not such Eurodollar Rate Loan or IBOR Rate Loan, as applicable, was in fact so funded.




3.6 Mitigation Obligation; Replacement of Lenders.



(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.4, or any Borrower is required to pay any additional amount to any Lender,
the L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C Issuer
pursuant to Section 3.1, or if any Lender gives a notice pursuant to Section 3.2,
then such Lender or the L/C Issuer shall, as applicable, 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 reasonable
judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 3.1 or 3.4, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.2, as applicable, and
(ii) in each case, would not subject such Lender or the L/C Issuer, as the case may be, to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C
Issuer, as the case may be. The Company hereby agrees to pay (or to cause the applicable
Designated Borrower to pay) all reasonable costs and expenses incurred by any Lender or the L/C
Issuer in connection with any such designation or assignment.



(b) Replacement of Lenders. If any Lender requests compensation under Section
3.4, or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.1, the Company
may replace such Lender in accordance with Section 10.13.


 


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



ARTICLE IV




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




4.1 Conditions of Initial Credit Extension. The obligation of each Lender to make its
initial Credit Extension hereunder is subject to satisfaction of the following conditions
precedent:



(a) The Administrative Agent’s receipt of the following, each of which shall be originals or
facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the date on which the Effective Time
occurs (or, in the case of certificates of governmental officials, a recent date before the
Effective Time) and each in form and substance satisfactory to the Administrative Agent and its
legal counsel:



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




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



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



(iv) such documents and certifications as the Administrative Agent may reasonably require to
evidence that each Loan Party is duly organized or formed, validly existing and, if applicable, in
good standing in the jurisdiction of its organization or formation;



(v) opinions of (x) Jones Day, counsel to the Loan Parties, and (y) Sarah McConnell, Esq.,
Senior Vice President, General Counsel and Secretary of the Company, substantially in the form of
Exhibits I and J, respectively;



(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of
all consents, licenses and approvals required in connection with the execution, delivery and
performance by such Loan Party and the validity against such Loan Party
of the Loan Documents to which it is a party, and such consents, licenses and approvals shall
be in full force and effect, or (B) stating that no such consents, licenses or approvals are so
required;


 


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(vii) a certificate signed by a Responsible Officer of the Company certifying (A) that the
conditions specified in Sections 4.2(a) and (b) have been satisfied, and (B) that
there has been no event or circumstance since the date of the Audited Financial Statements that has
had or could reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect;



(viii) a Compliance Certificate as of October 31, 2010, demonstrating compliance with the
financial covenants as of such date; and



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




(b) Any fees required to be paid at or before the Effective Time shall have been paid.



(c) Unless waived by the Administrative Agent, the Company shall have paid all Attorney Costs
of the Administrative Agent to the extent invoiced prior to the Effective Time, plus such
additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable
estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude a final settling of accounts between the
Company and the Administrative Agent).



(d) All obligations of the Company under the Existing Credit Agreement shall have been, or
shall concurrently be, paid in full.



4.2 Conditions to all Credit Extensions. The obligation of each Lender to honor any
Request for Credit Extension (other than (i) a Revolving Loan Notice requesting only a conversion
of Revolving Loans to the other Type or a continuation of Eurodollar Rate Loans or (ii) a Swing
Line Notice requesting only a conversion of Swing Line Loans to the other Type or a continuation of
Swing Line Loans) is subject to the following conditions precedent:



(a) The representations and warranties of each Loan Party contained in Article V, each
other Loan Document and each other document furnished at any time under or in connection herewith
or therewith shall be true and correct in all material respects on and as of the date of such
Credit Extension, except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they shall be true and correct in all material respects as of
such earlier date.




(b) No Default shall exist or would result from such proposed Credit Extension.



(c) If the applicable Borrower is a Designated Borrower, then the conditions of Section
2.15 to the designation of such Borrower as a Designated Borrower shall have been met to the
satisfaction of the Administrative Agent.



(d) In the case of a Credit Extension to be denominated in an Alternative Currency, there
shall not have occurred any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which in the reasonable opinion of the
Administrative Agent, the Required Lenders (in the case of any Loans to be denominated in an
Alternative Currency) or the L/C Issuer (in the case of any Letter of Credit to be denominated in
an Alternative Currency) would make it impracticable for such Credit Extension to be denominated in
the relevant Alternative Currency.


 


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



Each Request for Credit Extension (other than (i) a Revolving Loan Notice requesting only a
conversion of Revolving Loans to the other Type or a continuation of Eurodollar Rate Loans or (ii)
a Swing Line Notice requesting only a conversion of Swing Line Loans to the other Type or a
continuation of Swing Line Loans) submitted by the Company shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.2(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.



ARTICLE V




REPRESENTATIONS AND WARRANTIES





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



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



5.2 Authorization; No Contravention. The execution, delivery and performance by each
Loan Party of each Loan Document to which such Person is party have been duly authorized by all
necessary organizational action, and do not and will not (a) contravene the terms of any of such
Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or
the creation of any Lien under, (i) any material Contractual Obligation to which such Person is a
party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject; or (c) violate any Law.



5.3 Third Party Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or
performance by, or enforcement against, any Loan Party of any Loan Document to which it is a party.



5.4 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party
thereto. This Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of each Loan Party that is a party thereto,
enforceable against such Loan Party in accordance with its terms, except as enforceability may be
limited by applicable Debtor Relief Laws and by general equitable principles regardless of whether
considered in a proceeding in equity or at law.


 


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5.5 Litigation. There is no action, suit, investigation or proceeding pending or, to
the best of the Company’s knowledge, threatened in any court or before any arbitrator or
governmental authority that: (a) relates to the legality, validity or enforceability of any
provision of any Loan Document or any of the transactions contemplated thereby (including the
Proposed Acquisition), the rights or remedies of the Administrative Agent or any Lender thereunder,
the legality or propriety of any action taken or proposed to be taken by the Administrative Agent
or any Lender in connection therewith, or the power or authority of any Loan Party to perform its
obligations thereunder, or (b) is reasonably likely to be adversely determined and, if adversely
determined, would reasonably be expected to have a material adverse effect on the ability of any
Loan Party to perform its obligations under or in connection with any Loan Document.



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




5.7 ERISA Compliance.



(a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the best knowledge of the Company, nothing has occurred which would prevent, or cause the loss of,
such qualification. The Company and each ERISA Affiliate have made all required contributions to
each Plan subject to Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has been made with respect
to any Plan.



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



(c) Except as could not reasonably be expected to have a Material Adverse Effect (i) no ERISA
Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded
Pension Liability; (iii) neither the Company nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither the Company nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; (v) neither
the Company nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections
4069 or 4212(c) of ERISA; and (vi) as of the most recent valuation date for any Pension Plan, the
funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher
and neither the Company nor any ERISA Affiliate knows of any facts or circumstances that could
reasonably be expected to cause the funding target attainment percentage for any such plan to drop
below 60% as of the most recent valuation date.


 


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5.8 Ownership of Property; Liens. Each of the Company and each Subsidiary has good
record and marketable title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business, except for such defects in title as
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. The property of the Company and its Subsidiaries is subject to no Liens, other than Liens
permitted by Section 7.1.



5.9 Taxes. The Company and its Subsidiaries have filed all Federal and other material
tax returns and reports required to be filed, and have paid all Federal and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or any Subsidiary
that would, if made, have a Material Adverse Effect.




5.10 Financial Statements; No Material Adverse Effect.



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



(b) The unaudited consolidated financial statements of the Company and its Subsidiaries dated
July 31, 2010 and the related consolidated statements of income or operations, shareholders’ equity
and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material respects the financial
condition of the Company and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i) and
(ii), to the absence of footnotes and to normal year-end adjustments; and (iii) show all
material indebtedness and other material liabilities, direct or contingent, of the Company and its
Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and
Indebtedness, except as set forth in the Disclosure Certificate.



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


 


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5.11 Environmental Compliance. The Company monitors in the ordinary course of
business the effect of existing Environmental Laws and existing Environmental Claims on its
business, operations and properties and the business, operations and properties of its
Subsidiaries, and as a result thereof the Company has reasonably concluded that such Environmental
Laws and Environmental Claims could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.



5.12 Insurance. The properties of the Company and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Company, in such amounts
(after giving effect to any self-insurance compatible with the following standards), with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Company or the applicable
Subsidiary operates; provided that the Company and its Subsidiaries may maintain insurance
with an insurance company that is an Affiliate of the Company, to the extent such insurance company
is reasonably acceptable to the Administrative Agent and to the extent such self-insurance is
permitted by the jurisdiction under which the Company or such Subsidiary operates, solely for the
purpose of covering up to $2,000,000 of any applicable insurance claim.



5.13 Subsidiaries. As of the Effective Time, the Company has no Subsidiaries other
than those specifically disclosed in the Disclosure Certificate and has no equity investments in
any other Person other than those specifically disclosed in the Disclosure Certificate.




5.14 Margin Regulations; Investment Company Act.



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



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



5.15 Full Disclosure. None of the representations or warranties made by the Company
or any Subsidiary in the Loan Documents as of the date such representations and warranties are made
or as of the date such representations and warranties are deemed made, and none of the
statements contained in any exhibit, written report, written statement or certificate
furnished by or on behalf of the Company or any Subsidiary in connection with the Loan Documents
(including the offering and disclosure materials delivered by or on behalf of the Company to the
Lenders prior to the Effective Time), contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the statements made therein, in
light of the circumstances under which they are made, not misleading as of the time when made or
delivered (it being recognized by the Administrative Agent and the Lenders that all written
financial projections with respect to the Company and its Subsidiaries that have been or may
hereafter be delivered to the Administrative Agent and the Lenders have been or will be prepared in
good faith based upon assumptions believed by the Company to be reasonable as of the date of the
applicable projections).


 


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5.16 Compliance with Laws. Each of the Company and each Subsidiary is in compliance
with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it
or to its properties, except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings diligently
conducted or (b) the failure to comply therewith, either individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.



5.17 Intellectual Property; Licenses, Etc. The Company and its Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the best knowledge of the Company, no
slogan or other advertising device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Company or any Subsidiary infringes upon any
rights held by any other Person. No claim or litigation regarding any of the foregoing is pending
or, to the best knowledge of the Company, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



5.18 Representations as to Foreign Obligors. Each of the Company and each Foreign
Obligor represents and warrants to the Administrative Agent and the Lenders that:



(a) Such Foreign Obligor is subject to civil and commercial Laws with respect to its
obligations under this Agreement and the other Loan Documents to which it is a party (collectively
as to such Foreign Obligor, the “Applicable Foreign Obligor Documents”), and the execution,
delivery and performance by such Foreign Obligor of the Applicable Foreign Obligor Documents
constitute and will constitute private and commercial acts and not public or governmental acts.
Neither such Foreign Obligor nor any of its property has any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which
such Foreign Obligor is organized and existing in respect of its obligations under the Applicable
Foreign Obligor Documents.



(b) The Applicable Foreign Obligor Documents are in proper legal form under the Laws of the
jurisdiction in which such Foreign Obligor is organized and existing for the enforcement thereof
against such Foreign Obligor under the Laws of such jurisdiction, and to
ensure the legality, validity, enforceability, priority or admissibility in evidence of the
Applicable Foreign Obligor Documents. It is not necessary to ensure the legality, validity,
enforceability, priority or admissibility in evidence of the Applicable Foreign Obligor Documents
that the Applicable Foreign Obligor Documents be filed, registered or recorded with, or executed or
notarized before, any court or other authority in the jurisdiction in which such Foreign Obligor is
organized and existing or that any registration charge or stamp or similar tax be paid on or in
respect of the Applicable Foreign Obligor Documents or any other document, except for (i) any such
filing, registration, recording, execution or notarization as has been made or is not required to
be made until the Applicable Foreign Obligor Document or any other document is sought to be
enforced and (ii) any charge or tax as has been timely paid.


 


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(c) There is no tax, levy, impost, duty, fee, assessment or other governmental charge, or any
deduction or withholding, imposed by any Governmental Authority in or of the jurisdiction in which
such Foreign Obligor is organized and existing either (i) on or by virtue of the execution or
delivery of the Applicable Foreign Obligor Documents or (ii) on any payment to be made by such
Foreign Obligor pursuant to the Applicable Foreign Obligor Documents, except as has been disclosed
to the Administrative Agent.



(d) The execution, delivery and performance of the Applicable Foreign Obligor Documents
executed by such Foreign Obligor are, under applicable foreign exchange control regulations of the
jurisdiction in which such Foreign Obligor is organized and existing, not subject to any
notification or authorization except (i) such as have been made or obtained or (ii) such as cannot
be made or obtained until a later date (provided that any notification or authorization described
in clause (ii) shall be made or obtained as soon as is reasonably practicable).



ARTICLE VI




AFFIRMATIVE COVENANTS




So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding and not Cash
Collateralized, the Company shall, and shall (except in the case of the covenants set forth in
Sections 6.1, 6.2 and 6.3) cause each applicable Subsidiary to:



6.1 Financial Statements. Deliver to the Administrative Agent, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:



(a) as soon as available, but in any event within 90 days after the end of each fiscal year, a
consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year,
and the related consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of an independent certified public accountant of nationally
recognized standing reasonably acceptable to the Required Lenders, which report and opinion shall
be prepared in accordance with generally accepted auditing standards and shall not be subject to
any “going concern” or like qualification or exception or any qualification or
exception as to the scope of such audit and which report shall state that such financial
statements present fairly the financial position of the Company and its Subsidiaries as of the date
and for the period indicated in conformity with GAAP; and


 


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(b) as soon as available, but in any event within 60 days after the end of each of the first
three fiscal quarters of each fiscal year, a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the
portion of the fiscal year then ended, setting forth in each case in comparative form the figures
for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of
the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the
Company as fairly presenting the financial condition, results of operations, shareholders’ equity
and cash flows of the Company and its Subsidiaries in accordance with GAAP, subject only to normal
year-end adjustments and the absence of footnotes.



As to any information contained in materials furnished pursuant to Section 6.2(d), the
Company shall not be separately required to furnish such information under subsection (a)
or (b) above, but the foregoing shall not be in derogation of the obligation of the Company
to furnish the information and materials described in subsection (a) and (b) above
at the times specified therein.



6.2 Certificates; Other Information. Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:



(a) concurrently with the delivery of the financial statements referred to in
Section 6.1(a), (i) a certificate of its independent certified public accountants
certifying such financial statements and (ii) an attestation report from its independent certified
public accountants pursuant to Section 404(b) of the Sarbanes-Oxley Act of 2002 with respect to any
report included in such financial statements on the Company’s internal control over financial
reporting pursuant to Rule 13a-15 of the Securities Exchange Act of 1934;



(b) concurrently with the delivery of the financial statements referred to in
Sections 6.1(a) and (b), a duly completed Compliance Certificate signed by a
Responsible Officer of the Company;



(c) promptly after any request by the Administrative Agent, copies of any detailed audit
reports, management letters or recommendations submitted to the board of directors (or the audit
committee of the board of directors) of the Company by independent accountants in connection with
the accounts or books of the Company or any Subsidiary, or any audit of any of them;



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



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


 


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Documents required to be delivered pursuant to Section 6.1(a) or (b),
6.2(a) or 6.2(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed
to have been delivered on the date (i) on which the Company posts such documents, or provides a
link thereto, on the Company’s website on the Internet at the website address listed on
Schedule 10.2; or (ii) on which such documents are posted on the Company’s behalf on an
Internet or intranet website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or a website sponsored by the Administrative Agent or
otherwise); provided that: (x) the Company shall deliver paper copies of such documents to
the Administrative Agent or any Lender upon its request to the Company to deliver such paper copies
until a written request to cease delivering paper copies is given by the Administrative Agent or
such Lender and (y) the Company shall notify (by facsimile or electronic mail) the Administrative
Agent and each Lender of the posting of any such documents and provide to the Administrative Agent
by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative
Agent shall have no obligation to request the delivery of or to maintain paper copies of the
documents referred to above, and in any event shall have no responsibility to monitor compliance by
the Company with any such request by a Lender for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such documents.



Each Borrower acknowledges that (a) the Administrative Agent and/or the Arranger will make
available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf
of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”) and (b)
certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to any of the Borrowers or their respective affiliates
or securities) (each a “Public Lender”). Each Borrower agrees that (w) all Borrower
Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked
“PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to
have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat
such Borrower Materials as not containing any material non-public information with respect to the
Borrowers or any of their respective securities for purposes of United States Federal and state
securities laws (provided that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 10.8); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated “Public Investor;” and (z) the Administrative Agent and the Arranger shall be entitled
to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on
a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing, the
Company shall be under no obligation to mark any Borrower Materials “PUBLIC.”



6.3 Notices.




Promptly notify the Administrative Agent and each Lender:




(a) of the occurrence of any Default;


 


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



(c) of the occurrence of any ERISA Event, other than the determination that any Multiemployer
Plan is in endangered or critical status as set forth in clause (g) of the definition of ERISA
Event; and



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



Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Company setting forth details of the occurrence referred to therein and stating what
action the Company has taken and proposes to take with respect thereto. Each notice pursuant to
Section 6.3(a) shall describe with particularity any and all provisions of this Agreement
and any other Loan Document that have been breached.



6.4 Payment of Obligations. Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary; and (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property.



6.5 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force
and effect its and each Loan Party’s legal existence and good standing under the Laws of the
jurisdiction of its organization, except in a transaction permitted by Section 7.3 or
7.4; (b) take all reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary or desirable in the normal conduct of its business, except to the extent
that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c)
preserve or renew all of its registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material Adverse Effect.



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



6.7 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Company, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts (after giving effect to any self-insurance
compatible with the following standards) as are customarily carried under similar circumstances by
such other Persons; provided that the Company and its Subsidiaries may maintain insurance
with an insurance company that is an Affiliate of the Company, to the extent such insurance company
is reasonably acceptable to the Administrative Agent and to the extent such self-insurance is
permitted by the jurisdiction under which the Company or such Subsidiary operates, solely for the
purpose of covering up to $2,000,000 of any applicable insurance claim.


 


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



6.9 Books and Records. Maintain proper books of record and account, in which full,
true and correct entries sufficient to prepare financial statements in conformity with GAAP
consistently applied shall be made of all financial transactions and matters involving the assets
and business of the Company or such Subsidiary, as the case may be.



6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, all at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Company; provided that when an
Event of Default exists the Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the expense of the
Company at any time during normal business hours and without advance notice.



6.11 Use of Proceeds. Use the proceeds of the Loans to refinance indebtedness under
the Existing Credit Agreement and for Permitted Acquisitions, the Proposed Acquisition, working
capital, capital expenditures and other general corporate purposes not in contravention of any Law
or of any Loan Document.



6.12 Approvals and Authorizations. Maintain all authorizations, consents, approvals
and licenses from, exemptions of, and filings and registrations with, each Governmental Authority
of the jurisdiction in which each Foreign Obligor is organized and existing, and all approvals and
consents of each other Person in such jurisdiction, in each case that are required in connection
with the Loan Documents.



6.13 Further Assurances. Take such actions as are necessary, or as the Administrative
Agent (or the Required Lenders acting through the Administrative Agent) may reasonably request from
time to time, to ensure that the obligations of the Company hereunder
and under the other Loan Documents are guaranteed at all times by Subsidiaries that, together
with the Company, collectively (a) own assets which account for 90% or more of the consolidated
assets of the Company and its Subsidiaries and (b) generate revenues which account for 90% or more
of the consolidated revenues of the Company and its Subsidiaries during the most recently ended
period of 12 consecutive months.


 


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ARTICLE VII




NEGATIVE COVENANTS




So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding and
not Cash Collateralized, the Company shall not, nor shall it permit any Subsidiary to, directly or
indirectly:



7.1 Liens. Create, incur, assume or suffer to exist, any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, other than the following:




(a) Liens pursuant to any Loan Document;



(b) Liens existing at the Effective Time and listed in the Disclosure Certificate and any
renewals or extensions thereof; provided that the property covered thereby is not increased
and any renewal or extension of the obligations secured or benefited thereby is permitted by
Section 7.5(b);



(c) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP; provided that no notice of lien has
been filed or recorded under the Code;



(d) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other
like Liens arising in the ordinary course of business which are not overdue or which are being
contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person, which proceedings have
the effect of preventing the forfeiture or sale of the property subject thereto;



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



(f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations and other non-delinquent obligations of a like nature, in each
case incurred in the ordinary course of business; provided that all such Liens in the
aggregate would not (even if enforced) cause a Material Adverse Effect;



(g) customary Liens securing Surety Bonds;



(h) easements, rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business affecting real property which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of the applicable Person;



(i) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 8.1(i) or securing appeal or other surety bonds related to such judgments;


 


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(j) Liens securing Indebtedness permitted under Section 7.5(e); provided that
(i) such Liens do not at any time encumber any property other than the property financed by such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of acquisition;



(k) Liens arising solely by virtue of any statutory or common law provision relating to
bankers’ liens, rights of set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution; provided that (i) such deposit
account is not a dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by the FRB and (ii)
such deposit account is not intended by the Company or any Subsidiary to provide collateral to the
depository institution; and



(l) other Liens securing obligations in an aggregate amount outstanding not exceeding
$40,000,000 at any time.



7.2 Dispositions. Make any Disposition or enter into any agreement to make any
Disposition, except:



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




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



(c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property;



(d) subject to Section 6.12, Dispositions of property by the Company to any
wholly-owned Subsidiary or by any Subsidiary to the Company or to a wholly-owned Subsidiary;




(e) Dispositions permitted by Section 7.3; and



(f) Dispositions not otherwise permitted hereunder which are made for fair market value;
provided that (i) at the time of any such Disposition, no Default shall exist or result
from such Disposition, (ii) at least 75% of the aggregate sales price from such Disposition shall
be paid in cash and (iii) the aggregate value of all assets so sold by the Company and its
Subsidiaries shall not exceed, in any fiscal year, 10% of Consolidated Net Worth as of the end of
the preceding fiscal year.


 


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7.3 Fundamental Changes. Except as otherwise permitted by Section 7.2, merge,
dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default
exists or would result therefrom:



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



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



(c) to the extent not otherwise permitted by Section 7.2 or this Section 7.3,
any Subsidiary that is not a Guarantor may dissolve or liquidate; provided that the value
of assets of such Subsidiary that are transferred to an entity other than a Loan Party in
connection with such liquidation or dissolution shall be included for purposes of determining
compliance with Section 7.2(f)(iii).




7.4 Investments. Make any Investments, except:




(a) investments which, when made, constitute Permitted Investments



(b) investments which, when made, constitute Permitted Joint Ventures; provided that
such investments shall only be permitted hereunder if the Dollar Equivalent of all consideration
paid (including any Indebtedness assumed), and any contractually binding commitment to pay any
additional consideration or make any future capital contributions incurred in connection therewith
does not exceed, together with all other amounts so paid, assumed or incurred, or with respect to
which the Company or any Subsidiary has any commitment, in connection with all other Permitted
Joint Ventures outstanding at such time, $40,000,000;



(c) advances to officers, directors and employees of the Company and Subsidiaries in an
aggregate amount not to exceed (i) $1,000,000 at any time outstanding, for travel, entertainment
and analogous ordinary business purposes and (ii) $10,000,000 at any time outstanding for
relocation purposes;



(d) Investments by the Company in any Subsidiary or by any Subsidiary in the Company or
another Subsidiary;



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



(f) Guarantees permitted by Section 7.5;




(g) Investments made to consummate Permitted Acquisitions;


 


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(h) Investments that constitute, or that are made to consummate, the Proposed Acquisition;
provided that the Proposed Acquisition shall only be permitted hereunder so long as (i) the
Company is and will be in pro forma compliance with each of the financial covenants contained in
Section 7.11 both before and after giving effect to such Acquisition, (ii) no Default shall
exist at the time of, or shall result from, such Acquisition, (iii) the Company shall have
delivered to the Administrative Agent a certificate of a Responsible Officer (x) certifying that
all approvals, consents, exemptions, authorizations or other action by, or notice to, or filing
with, any Governmental Authority or any other Person that are required as a condition to
consummation of the Proposed Acquisition pursuant to the terms of the agreement governing the
Proposed Acquisition or the failure of which to receive, give or make, as applicable, could
reasonably be expected to have a Material Adverse Effect have been received, given or made, as
applicable, and are in full force and effect and (y) demonstrating pro forma compliance with the
financial covenant set forth in Section 7.11(c) after giving effect to the Proposed
Acquisition, (iv) the Company shall have delivered to the Administrative Agent, for delivery to
each Lender (I) no later than the Effective Time (or, if not delivered at the Effective Time, two
Business Days prior to the date of the Proposed Acquisition), a draft of the purchase agreement or
other similar agreement pursuant to which the Proposed Acquisition is to be consummated, which
draft shall be in final form other than immaterial changes, and (II) no less than three Business
Days prior to the date of the Proposed Acquisition, (1) the most recent audited financial
statements of the target of the acquisition, including a consolidated balance sheet of such company
and its subsidiaries, if applicable, as at the end of the fiscal year covered thereby, and the
related consolidated statements of income or operations, shareholders’ equity and cash flows for
such fiscal year, (2) with respect to the most recent fiscal quarter for which such items are
available, a consolidated balance sheet of the target of the acquisition and its subsidiaries, if
applicable, as at the end of such fiscal quarter, and the related consolidated statements of income
or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of
the fiscal year then ended and (3) if requested by the Administrative Agent, a written
reconciliation between the calculation of the financial covenant set forth in the certificate
delivered pursuant to clause (iii) above and the financial statements delivered pursuant to
this clause (iv), (v) the Company shall have delivered to the Administrative Agent, for
delivery to each Lender, on or before the date of the Proposed Acquisition, a fully executed copy
of the purchase agreement or other similar agreement pursuant to which the Proposed Acquisition is
to be consummated and (vi) the Company shall have delivered to the Administrative Agent, for
delivery to each Lender, on or before the date that is 30 days after the date of the Proposed
Acquisition, a certificate of a Responsible Officer demonstrating pro forma compliance with the
financial covenants set forth in Sections 7.11(a) and (b) after giving effect to
the Proposed Acquisition.




(i) Investments listed in the Disclosure Certificate; and




(j) other Investments not exceeding $25,000,000 in the aggregate at any time outstanding.




7.5 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



(a) Indebtedness under the Loan Documents;



(b) Indebtedness outstanding at the Effective Time and listed in the Disclosure Certificate
and any refinancings, refundings, renewals or extensions thereof; provided that the amount
of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other reasonable amount paid, and
fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;


 


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(c) Guarantees of the Company or any Subsidiary in respect of Indebtedness otherwise permitted
hereunder of the Company or any wholly-owned Subsidiary;



(d) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising
under any Swap Contract; provided that (i) such obligations are (or were) entered into by
such Person in the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such Person and not for
purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party;



(e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets within the limitations set forth in Section 7.1(j);
provided that the aggregate amount of all such Indebtedness at any one time outstanding
shall not exceed a Material Financial Amount;



(f) Guarantees by the Company or any Subsidiary in respect of performance bond carriers and
customers for payment, in each case in the ordinary course of business;



(g) unsecured Indebtedness; provided that (i) no Default shall have occurred and be
continuing at the time of the incurrence, assumption or creation of such Indebtedness, or would
result therefrom, (ii) the Company shall be in pro forma compliance with the Leverage Ratio in
Section 7.11(c) both before and after the incurrence, assumption or creation of such
Indebtedness, (iii) the weighted average life of such Indebtedness shall not be less than the
amount of time between the date of the incurrence, assumption or creation of such Indebtedness and
the date that is 91 days after the Maturity Date and (iv) the covenants applicable to such
Indebtedness shall not in any way be more restrictive on the Company or any Subsidiary than the
covenants set forth herein and in the other Loan Documents; and provided, further,
that the Company agrees that it shall not, nor shall it permit any Subsidiary to, directly or
indirectly, prepay any such unsecured Indebtedness;



(h) unsecured Indebtedness in an aggregate principal amount not to exceed at any time
outstanding $5,000,000; provided that no Default shall have occurred and be continuing at
the time of the incurrence, assumption or creation of such Indebtedness, or would result therefrom;



(i) after the consummation of the Proposed Acquisition in accordance with the terms hereof,
Indebtedness arising under the Lightning Letters of Credit; provided that no maturity date
of any Lightning Letter of Credit shall be extended beyond the maturity date in effect as of the
Effective Time, whether by amendment or otherwise, and no Lightning Letter of Credit shall be
amended or otherwise modified after the Effective Time to increase the amount thereof; and



(j) unsecured Indebtedness owing by the Company to any Subsidiary Guarantor or by any
Subsidiary Guarantor to the Company or another Subsidiary Guarantor.


 


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7.6 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.



7.7 Restricted Payments. Declare or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, except that:



(a) each Subsidiary may make Restricted Payments to the Company and to wholly-owned
Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Subsidiary, to the
Company and any Subsidiary and to each other owner of capital stock or other equity interests of
such Subsidiary on a pro rata basis based on their relative ownership interests; provided
that no Restricted Payment shall be made by a non-wholly-owned Subsidiary which is a Guarantor at
any time a Default exists);



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



(c) the Company and each Subsidiary may (i) make Permitted Stock Repurchases and (ii)
purchase, redeem or otherwise acquire shares of its common stock or other common equity interests
or warrants or options to acquire any such shares with the proceeds received from the substantially
concurrent issue of new shares of its common stock or other common equity interests; and




(d) the Company may declare or pay ordinary cash dividends to its stockholders.



7.8 Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the Company and its Subsidiaries
at the Effective Time or any business substantially related, complementary or incidental thereto.



7.9 Transactions with Affiliates. Enter into any transaction of any kind with any
Affiliate of the Company, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Company or such Subsidiary as would be
obtainable by the Company or such Subsidiary at the time in a comparable arm’s length transaction
with a Person other than an Affiliate.



7.10 Restrictions on Subsidiary Dividends and Transfers of Assets. (i) Except for
Contractual Obligations listed on Schedule 7.10 (and refinancings thereof), be a party to
any Contractual Obligation (other than this Agreement or any other Loan Document) that limits the
ability of any Subsidiary to make Restricted Payments to the Company or any Guarantor or (ii)
except for Contractual Obligations listed on Schedule 7.10 (and refinancings thereof) and
Contractual Obligations governing any Indebtedness permitted under Section 7.5(e), be a
party to any Contractual Obligation (other than this Agreement or any other Loan Document) that
limits the ability of any Subsidiary to transfer property to the Company or any Guarantor.


 


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7.11 Financial Covenants.



(a) Consolidated Net Worth. Permit Consolidated Net Worth at any time to be less than
the sum of (i) $570,000,000, (ii) an amount equal to 50% of the Consolidated Net Income earned in
each full fiscal quarter ending after the Effective Time (with no deduction for a net loss in any
such fiscal quarter) and (iii) an amount equal to 100% of the aggregate increases in Shareholders’
Equity of the Company and its Subsidiaries after the Effective Time by reason of the issuance and
sale of capital stock or other equity interests of the Company or any Subsidiary, including upon
any conversion of debt securities of the Company into such capital stock or other equity interests,
but excluding by reason of the issuance and sale of capital stock pursuant to the Company’s
employee stock purchase plans, employee stock option plans and similar programs.



(b) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio to be less
than 1.50 to 1.0 at any time.



(c) Leverage Ratio. Permit the Leverage Ratio as of the end of any fiscal quarter to
be greater than 3.25 to 1.0.



ARTICLE VIII




EVENTS OF DEFAULT AND REMEDIES





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



(a) Non-Payment. The Company or any other Loan Party fails to pay, in the currency
required hereunder, (i) when and as required to be paid herein any amount of principal of any Loan
or any L/C Obligation, or (ii) within three Business Days after the same becomes due, any interest
on any Loan or on any L/C Obligation, or any non-use or other fee due hereunder, or (iii) within
five days after the same becomes due, any other amount payable hereunder or under any other Loan
Document; or



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



(c) Specific Covenants. The Company fails to perform or observe any term, covenant or
agreement contained in any of Section 6.3(a), 6.5 (with respect to the legal
existence of the Company only) or 6.10 or Article VII; provided that, in
the case of Section 7.9, such failure shall have continued for five Business Days; or



(d) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (c) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30 days after the
earlier of (i) the date on which a Responsible Officer knew or reasonably should have known of such
failure and (ii) the date on which written notice thereof is given by the Administrative Agent or
any Lender; or


 


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(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) or Guarantee (other than any Surety Bond) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than a Material Financial Amount, or
(B) fails to observe or perform any other agreement or condition relating to any such Indebtedness
or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto,
or any other event occurs, the effect of which default or other event is to cause, or to permit the
holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which the Company or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event
(as so defined) under such Swap Contract as to which the Company or any Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed by the Company or such
Subsidiary as a result thereof is greater than a Material Financial Amount; or



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



(g) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Company under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of a Material Financial Amount, (ii) a contribution failure occurs with respect to any
Pension Plan sufficient to give rise to a Lien under section 303(k) of ERISA; or (iii) the Company
or any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan in an amount equal to or in excess of a
Material Financial Amount.


 


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(h) Inability to Pay Debts; Attachment. (i) Any Loan Party becomes unable or admits
in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ
or warrant of attachment or execution or similar process is issued or levied against all or any
material part of the property of any such Person and is not released, vacated or fully bonded
within 60 days after its issue or levy; or



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



(j) Change of Control. There occurs any Change of Control with respect to the
Company; or



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



(l) Defaults with respect to Surety Bonds. (i) Any Person issuing Surety Bonds on
behalf of the Company or any Subsidiary ceases for any reason to so issue Surety Bonds, the Company
or the applicable Subsidiary fails to promptly procure another issuer for Surety Bonds and such
cessation and failure could reasonably be expected to have a Material Adverse Effect; or (ii) the
Company or any Subsidiary breaches or defaults on one or more contracts for which Surety Bonds have
been issued in an aggregate amount greater than or equal to a Material Financial Amount and the
Person or Persons which issued such Surety Bonds either (x) take possession of the work under such
bonded contracts and such taking of possession would reasonably be expected to have a Material
Adverse Effect or (y) file any Uniform Commercial Code financing statement or similar document to
perfect any Lien securing such bonded contracts, unless such filing is terminated within 10 days
after such filing is made.



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



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


 


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



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



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



provided that upon the occurrence of an actual or deemed entry of an order for relief with
respect to any Borrower under the Bankruptcy Code of the United States, the obligation of each
Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable, and the obligation of the
Company to Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any Lender.



ARTICLE IX




ADMINISTRATIVE AGENT





9.1 Appointment and Authorization of Administrative Agent.



(a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act
on its behalf as the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the
Company nor any other Loan Party shall have rights as a third party beneficiary of any of such
provisions.



(b) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith and the L/C Issuer shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and the applications and agreements for letters
of credit pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as
used in this Article IX and in the definition of “Agent-Related Person” included the L/C
Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with
respect to the L/C Issuer.



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


 


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9.3 Exculpatory Provisions. No Agent-Related Person shall have any duty or obligation
except those expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, no Agent-Related Person:



(a) shall be subject to any fiduciary or other implied duties, regardless of whether a Default
has occurred and is continuing;



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



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



The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.1 and 8.2) or (ii) 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 notice describing such Default is
given to the Administrative Agent by the Company, a Lender or the L/C Issuer.



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


 


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



9.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice from a Lender or the
Company referring to this Agreement, describing such Default and stating that such notice is a
“notice of default.” The Administrative Agent will notify the Lenders of its receipt of any such
notice. The Administrative Agent shall take such action with respect to such Default as may be
directed by the Required Lenders in accordance with Article VIII; provided that
unless and until the Administrative Agent has received any such direction, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable or in the best interest of the Lenders.



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



9.7 Administrative Agent in its Individual Capacity; Rights as a Lender. Bank of
America and its Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of the Loan Parties and their respective Affiliates as
though Bank of America were not the Administrative Agent or the L/C Issuer hereunder and without
notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities,
Bank of America or its Affiliates may receive information regarding any Loan Party or its
Affiliates (including information that may be subject to confidentiality obligations in favor of
such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or
in any other advisory capacity for and generally engage in any kind of business with the Borrower
or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.


 


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9.8 Successor Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Company. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in consultation with the Company,
to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate
of any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent
meeting the qualifications set forth above; provided that if the Administrative Agent shall
notify the Company and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such notice and (1) the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder and
under the other Loan Documents and (2) all payments, communications and determinations provided to
be made by, to or through the Administrative Agent shall instead be made by or to each Lender and
the L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative
Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Company to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Company and such successor.
After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents,
the provisions of this Article and Section 10.4 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.



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


 


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9.9 Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Company) shall be entitled and empowered, by intervention
in such proceeding or otherwise



(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 2.3(g) and (h), 2.9 and 10.5) allowed in such
judicial proceeding; and



(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.9 and 10.4.



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



9.10 Guaranty Matters. The Lenders irrevocably authorize the Administrative Agent to
(and the Administrative Agent agrees that, so long as no Default exists or would result therefrom
it will upon the request of the Company), release any Subsidiary Guarantor from its obligations
under the Subsidiary Guaranty if (i) such Person ceases to be a Subsidiary as a result
of a transaction permitted hereunder or (ii) the Company delivers to the Administrative Agent
a written request for the release of a Subsidiary from its obligations under the Guaranty;
provided that prior to any such release the Administrative Agent shall have received a
certificate from a Responsible Officer certifying that (a) the Company will be in compliance with
Section 6.13 after giving effect to such release and (b) no Default exists or would result
therefrom.


 


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Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release any Guarantor from its obligations under the
Guaranty pursuant to this Section 9.10.



9.11 Other Agents. None of the Lenders or other Persons identified on the facing page
or signature pages of this Agreement as a “syndication agent” or “co-documentation agent” shall
have any right, power, obligation, liability, responsibility or duty under this Agreement other
than, in the case of such Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will
not rely, on any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.



ARTICLE X




MISCELLANEOUS




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



(a) waive any condition set forth in Section 4.1(a) without the written consent of
each Lender;



(b) increase or extend the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.2) without the written consent of such Lender;



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



(d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.1)
any fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided that only the consent of the
Required Lenders shall be necessary to waive any obligation of the Company to pay interest at the
Default Rate;



(e) change Section 2.13 in a manner that would alter the pro rata sharing of payments
required thereby without the written consent of each Lender;



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


 


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(g) amend the definition of “Alternative Currency” without the written consent of each Lender;
or



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



and, provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Letter of Credit Application relating to
any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Swing Line Lender in addition to the Lenders required above,
affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to
the Lenders required above, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove
any amendment, waiver or consent hereunder(and any amendment, waiver or consent which by its terms
requires the consent of all Lenders or each affected Lender may be effected with the consent of the
applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of such Lender
may not be increased or extended without the consent of such Lender and (y) any waiver, amendment
or modification requiring the consent of all Lenders or each affected Lender that by its terms
affects any Defaulting Lender more adversely than other affected Lenders shall require the consent
of such Defaulting Lender.




10.2 Notices and Other Communications; Facsimile Copies.



(a) General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including by facsimile transmission).
All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile
number or (subject to subsection (c) below) electronic mail address, and all notices and
other communications expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:



(i) if to a Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to
the address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 10.2 or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such party in a notice to the
other parties; and


 


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(ii) if to any other Lender, to the address, facsimile number, electronic mail address or
telephone number specified in its Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated by such party in a
notice to the Company, the Administrative Agent, the L/C Issuer and the Swing Line Lender.



All such notices and other communications shall be deemed to be given or made upon the earlier to
occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail,
four Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which
form of delivery is subject to the provisions of subsection (c) below), when delivered;
provided that notices and other communications to the Administrative Agent, the L/C Issuer
and the Swing Line Lender pursuant to Article II shall not be effective until actually
received by such Person. In no event shall a voicemail message be effective as a notice,
communication or confirmation hereunder.



(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures
shall, subject to applicable Law, have the same force and effect as manually-signed originals and
shall be binding on all Loan Parties, the Administrative Agent and the Lenders. The Administrative
Agent may also require that any such documents and signatures be confirmed by a manually-signed
original thereof; provided that the failure to request or deliver the same shall not limit
the effectiveness of any facsimile document or signature.



(c) Limited Use of Electronic Mail. Electronic mail and Internet and intranet
websites may be used only to distribute routine communications, such as financial statements and
other information as provided in Section 6.2, and to distribute Loan Documents for
execution by the parties thereto, and may not be used for any other purpose.



(d) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Revolving Loan
Notices and Swing Line Loan Notices) purportedly given by or on behalf of any Borrower even if (i)
such notices were not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. The Company shall indemnify each
Agent-Related Person and each Lender from all losses, costs, expenses and liabilities resulting
from reliance by any such Person on any notice given or purportedly given by or on behalf of any
Borrower, except, with respect to any written notice only, to the extent such losses result from
the gross negligence or willful misconduct of such Agent-Related Person or such Lender. All
telephonic notices to and other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such recording.


 


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(e) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
RELATED PERSONS DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE
ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT-RELATED PERSON IN CONNECTION WITH
THE BORROWER MATERIALS OR THE PLATFORM. In no event shall any Agent-Related Person have any
liability to any Borrower, any Lender, the L/C Issuer or any other Person for losses, claims,
damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out
of any Borrower’s or any Agent-Related Person’s transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or expenses are
determined by a court of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent-Related Person;
provided that in no event shall any Agent-Related Person have any liability to any
Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).



10.3 No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative
Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.



10.4 USA Patriot Act Notice. Each Lender and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Company that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”), it is required to obtain, verify and record information that identifies the
Company, which information includes the name and address of the Company and other information that
will allow such Lender or the Administrative Agent, as applicable, to identify the Company in
accordance with the Act.




10.5 Expenses; Indemnity; Damage Waiver.



(a) Costs and Expenses. The Company shall pay (i) all reasonable and documented
out-of-pocket expenses (including Attorney Costs and consultants’ fees) incurred by the
Administrative Agent and its Affiliates in connection with the syndication of the credit facilities
provided for herein, the preparation, negotiation, execution, delivery and administration of this
Agreement and the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance or Modification of any Letter of Credit or any demand for
payment thereunder and (iii) all reasonable and documented out-of-pocket expenses
incurred by the Administrative Agent, any Lender or the L/C Issuer (including Attorney Costs),
and shall pay all fees and time charges for attorneys who may be employees of the Administrative
Agent, any Lender or the L/C Issuer, in connection with the enforcement or protection of its rights
(A) hereunder and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder during, in the case of both
clause (A)  and this clause (B), the existence of an Event of Default (including
all such reasonable and documented out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit).


 


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(b) Indemnification by the Company. The Company and each Designated Borrower shall
indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and
each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the reasonable and documented fees, charges
and disbursements of any counsel for any Indemnitee, but excluding any Taxes, which shall be dealt
with exclusively pursuant to Section 3.1), and shall indemnify and hold harmless each
Indemnitee from all reasonable and documented fees and time charges and disbursements for attorneys
who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by the Company or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder, the consummation of the
transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other
Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by any Borrower or any of its Subsidiaries, or
any Environmental Liability related in any way to any Borrower or any of its Subsidiaries, or
(iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether brought by a third
party or by the Company or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined
by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the
Company or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if the Company or such Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.



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


 


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(d) Waiver of Consequential Damages, Etc. To the fullest 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, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for
any damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby.



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



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



10.6 Payments Set Aside. To the extent that any payment by or on behalf of any
Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such set-off or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection
with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such set-off had not
occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect, in the applicable currency of such
recovery or payment.


 


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10.7 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 no
Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment
of a security interest subject to the restrictions of subsection (f) or (i) of this
Section, or (iv) to an SPC in accordance with the provisions of subsection (h) of this
Section (and any other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under
or by reason of this Agreement.



(b) Subject to subsection (k) of this Section, any Lender may at any time assign to
one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations and in Swing Line Loans) at the time
owing to it); provided that (i) except in the case of an assignment of the entire remaining
amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of
an assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as defined in
subsection (g) of this Section) with respect to a Lender, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to such assignment
is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing, the
Company otherwise consents (which consent of the Company shall not be unreasonably withheld or
delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or
the Commitment assigned, except that this clause (ii) shall not apply to rights in respect
of Swing Line Loans; (iii) any assignment of a Commitment must be approved by the Administrative
Agent, the L/C Issuer and the Swing Line Lender (which approvals shall not be unreasonably withheld
or delayed) unless the Person that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee) or an Affiliate of the assigning
Lender; and (iv) 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.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to
the benefits of Sections 3.1 (and subject to the requirements of Section 3.1),
3.3, 3.4 and 10.5 with respect to facts and circumstances occurring prior
to the effective date of such assignment). Upon request, each Borrower (at its expense) shall
execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this subsection shall be
treated for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with subsection (d) of this Section.


 


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(c) The Administrative Agent, acting solely for this purpose as an agent of the Borrowers,
shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive absent manifest error, 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. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the Register as provided in
this Section 10.7(c).



(d) Any Lender may at any time, without the consent of, or notice to, any Borrower or the
Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting
Lender or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the 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, waiver or other modification described in the first proviso to
Section 10.1 that directly affects such Participant. Subject to subsection (e) of this
Section, each Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.1, 3.4 and 3.5 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled to the benefits of
Section 10.9 as though it were a Lender; provided such Participant agrees to be
subject to Section 2.13 as though it were a Lender. Each Lender that sells a
Participation, acting solely for this purpose as an agent of the Borrower, shall maintain at one of
its offices a register for the recordation of the names and addresses of each Participant and the
principal amounts of, and stated interest on, each Participant’s interest in the Loans or other
obligations under this Agreement (the “Participant Register”). The entries in the
Participant Register shall be conclusive, absent manifest error, and such Lender may treat each
Person whose name is recorded in the Participant Register pursuant to the terms hereof as the
owner of such Participation for all purposes of this Agreement, notwithstanding notice to the
contrary.


 


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(e) A Participant shall not be entitled to receive any greater payment under Section
3.1 or 3.4 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 Company’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.1
unless the Company is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers, to comply with Section 3.1(e) as though it were a
Lender.



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




(g) As used herein, the following terms have the following meanings:




“Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a Lender;
(iii) an Approved Fund; and (iv) any other Person (other than a natural person)
approved by (x) the Administrative Agent, the L/C Issuer and the Swing Line Lender,
and (y) unless an Event of Default has occurred and is continuing, the Company (each
such approval not to be unreasonably withheld or delayed); provided, that,
notwithstanding the foregoing, “Eligible Assignee” shall not include (x) the
Company or any of the Company’s Affiliates or Subsidiaries or (y) any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender
hereunder, would constitute any of the foregoing Persons described in this clause
(y).




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




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


 


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(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle identified as such in writing from time
to time by the Granting Lender to the Administrative Agent and the Company (an “SPC”) the
option to provide all or any part of any Revolving Loan that such Granting Lender would otherwise
be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to fund any Revolving Loan, and (ii) if an SPC elects not to
exercise such option or otherwise fails to make all or any part of such Revolving
Loan, the Granting Lender shall be obligated to make such Revolving Loan pursuant to the terms
hereof. Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by
any SPC of such option shall increase the costs or expenses or otherwise increase or change the
obligations of the Company under this Agreement (including its obligations under Section
3.2), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this
Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes,
including the approval of any amendment, waiver or other modification of any provision of any Loan
Document, remain the lender of record hereunder. The making of a Revolving Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such
Revolving Loan were made by such Granting Lender. In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or join any other Person in
instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the Company and the Administrative Agent and with the payment of a processing fee of
$3,500, assign all or any portion of its right to receive payment with respect to any Revolving
Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information
relating to its funding of Revolving Loans to any rating agency, commercial paper dealer or
provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.



(i) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may
create a security interest in all or any portion of the Loans owing to it and the Note, if any,
held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as
security for such obligations or securities, provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this Section 10.7, (i)
no such pledge shall release the pledging Lender from any of its obligations under the Loan
Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender
under the Loan Documents even though such trustee may have acquired ownership rights with respect
to the pledged interest through foreclosure or otherwise.



(j) Notwithstanding anything to the contrary contained herein, if at any time Bank of America
assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of America
may, (i) upon 30 days’ notice to the Company and the Lenders, resign as L/C Issuer and/or (ii) upon
30 days’ notice to the Company, resign as Swing Line Lender. In the event of any such resignation
as L/C Issuer or Swing Line Lender, the Company shall be entitled to appoint from among the Lenders
(subject to the consent by the applicable Lender to such appointment) a successor L/C Issuer or
Swing Line Lender hereunder; provided that no failure by the Company to appoint any such
successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights and
obligations of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.3(c)). If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender
provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders to make Base Rate
Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section
2.4(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C
Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangements satisfactory to Bank of America to
effectively assume the obligations of Bank of America with respect to such Letters of Credit.


 


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



10.8 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 Related Parties, 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 (including any self-regulatory authority, such
as the National Association of Insurance Commissioners), (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e)
in connection with the exercise of any remedy hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to a Borrower and its obligations, (g) with the consent of the Company or other applicable Loan
Party or (h) to the extent such Information (x) becomes publicly available other than as a result
of a breach of this Section or (y) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Company. For purposes of this Section,
“Information” means all information received from any Loan Party relating to any
Loan Party or any of their respective businesses, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure
by any Loan Party, provided that, in the case of information received from a Loan Party
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.


 


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10.9 Set-off. In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each Lender is authorized
at any time and from time to time, without prior notice to the Company or any other Loan Party, any
such notice being waived by the Company (on its own behalf and on behalf of each Loan Party) 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 by, and other indebtedness at any time owing
by, such Lender to or for the credit or the account of the respective Loan Parties against any and
all Obligations owing to such Lender hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not the Administrative Agent or such Lender shall have made
demand under this Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured or denominated in a currency different from that of the applicable deposit
or indebtedness; provided, that in the event that any Defaulting Lender shall exercise any
such right of setoff, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions of Section
2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other
funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y)
the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in
reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such
right of setoff. Each Lender agrees promptly to notify the Company and the Administrative Agent
after any such set-off and application made by such Lender; provided that the failure to
give such notice shall not affect the validity of such set-off and application.



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



10.11 Integration. This Agreement, together with the other Loan Documents, comprises
the complete and integrated agreement of the parties on the subject matter hereof and
thereof and supersedes all prior agreements, written or oral, on such subject matter. In the
event of any conflict between the provisions of this Agreement and those of any other Loan
Document, the provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the Lenders in any other
Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted
with the joint participation of the respective parties thereto and shall be construed neither
against nor in favor of any party, but rather in accordance with the fair meaning thereof.


 


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



10.13 Replacement of Lenders. If any Lender requests compensation under Section
3.4, or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.1, or if any
Lender is a Defaulting Lender, then the Company may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and consents required
by, Section 10.7), all of its interests, rights and obligations under this Agreement and
the related Loan Documents to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that:



(a) the Company shall have paid (or caused a Designated Borrower to pay) to the Administrative
Agent the assignment fee specified in Section 10.7(b);



(b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under Section 3.5)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or
the Company or applicable Designated Borrower (in the case of all other amounts);



(c) in the case of any such assignment resulting from a claim for compensation under
Section 3.4 or payments required to be made pursuant to Section 3.1, such
assignment will result in a reduction in such compensation or payments thereafter; and



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



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



10.14 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.


 


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10.15 Severability. If any provision of this Agreement or the other Loan Documents is
held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 10.15, if and to the extent that the enforceability of any provisions in this
Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable,
then such provisions shall be deemed to be in effect only to the extent not so limited.



10.16 Automatic Debits of Fees. With respect to any interest, non-use fee, letter of
credit fee or other fee due and payable to the Administrative Agent, the LC Issuer, the Swing Line
Lender, Bank of America or the Arranger under the Loan Documents, the Company hereby irrevocably
authorizes Bank of America to debit any deposit account of the Company with Bank of America in an
amount such that the aggregate amount debited from all such deposit accounts does not exceed such
fee or other cost or expense. If there are insufficient funds in such deposit accounts to cover
the amount of the interest or fees then due, such debits will be reversed (in whole or in part, in
Bank of America’s sole discretion) and such amount not debited shall be deemed to be unpaid. No
such debit under this Section shall be deemed a set-off.




10.17 Governing Law.



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



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


 


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



(d) EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 10.2. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY
HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



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



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


 


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



10.20 Termination of Existing Credit Agreement. The Company and the Lenders that are
parties to the Existing Credit Agreement (which constitute “Required Lenders” under and as defined
in the Existing Credit Agreement) agree that, at the Effective Time, (i) the Commitments under the
Existing Credit Agreement shall automatically terminate (without any further action and
notwithstanding any provision of the Existing Credit Agreement that requires notice of such
termination), (ii) the Existing Credit Agreement shall be of no further force or effect (except for
any provision thereof that by its terms survives termination thereof) and (iii) the notice
requirement set forth in Section 2.5 of the Existing Credit Agreement with respect to
prepayments is waived in accordance with the terms of the Existing Credit Agreement.




10.21 Time of the Essence. Time is of the essence of the Loan Documents.



10.22 Judgment Currency. If, for the purposes of obtaining judgment in any court, it
is necessary to convert a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such other
currency on the Business Day preceding that on which final judgment is given. The obligation
of each Borrower in respect of any such sum due from it to the Administrative Agent or any Lender
hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the
“Judgment Currency”) other than that in which such sum is denominated in accordance with
the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only
to the extent that on the Business Day following receipt by the Administrative Agent or such
Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the
Administrative Agent or such Lender, as the case may be, may in accordance with normal banking
procedures 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 Administrative Agent or
any Lender from any Borrower in the Agreement Currency, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such
Lender, as the case may be, against such loss. If the amount of the Agreement Currency so
purchased is greater than the sum originally due to the Administrative Agent or any Lender in such
currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount
of any excess to such Borrower (or to any other Person who may be entitled thereto under applicable
law).


 


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ARTICLE XI




COMPANY GUARANTY




11.1 The Guaranty. In order to induce the Lenders to enter into this Agreement and to
extend credit hereunder and in recognition of the direct benefits to be received by the Company
from the proceeds of the Loans and the issuance of the Letters of Credit, the Company hereby agrees
with the Lenders as follows: the Company hereby absolutely, irrevocably and unconditionally
guarantees as primary obligor and not merely as surety the full and prompt payment when due,
whether upon maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of
the Designated Borrowers to the Guaranteed Creditors and the due performance and compliance with
all terms, conditions and agreements contained in the Loan Documents by each Designated Borrower.
If any or all of the Guaranteed Obligations of such Borrowers to the Administrative Agent and/or
any Lender becomes due and payable hereunder, the Company unconditionally promises to pay such
indebtedness to the Administrative Agent and/or such Lenders, as applicable, on demand, together
with any and all reasonable expenses which may be incurred by the Administrative Agent or the
Lenders in collecting any of the Guaranteed Obligations. If claim is ever made upon the
Administrative Agent and/or any Lender for repayment or recovery of any amount or amounts received
in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees
repays all or part of said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property or (ii) any
settlement or compromise of any such claim effected by such payee with any such claimant (including
the Borrowers), then and in such event the Company agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon the Company, notwithstanding any revocation of the
guaranty under this Article XI or other instrument evidencing any liability of any
Borrower, and the Company shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never originally been
received by any such payee.



11.2 Insolvency. Additionally, the Company unconditionally and irrevocably guarantees
the payment of the Dollar Equivalent of any and all of the Guaranteed Obligations of the Designated
Borrowers to the Guaranteed Creditors whether or not due or payable by any Borrower upon the
occurrence of any of the events specified in Section 8.1(f), and unconditionally promises
to pay the Dollar Equivalent of such Guaranteed Obligations to the Guaranteed Creditors, or order,
on demand, in Dollars.


 


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11.3 Nature of Liability. The liability of the Company hereunder is exclusive and
independent of any security for or other guaranty of the Guaranteed Obligations of any Borrower
whether executed by the Company, any other guarantor or by any other party, and the liability of
the Company hereunder is not affected or impaired by (a) any direction as to application of payment
by any Borrower or by any other party; or (b) any other continuing or other guaranty, undertaking
or maximum liability of a guarantor or of any other party as to the Guaranteed Obligations of any
Borrower; or (c) any payment on or in reduction of any such other guaranty or undertaking; or (d)
any dissolution, termination or increase, decrease or change in personnel by any Borrower; or (e)
any payment made to any Guaranteed Creditor on the Guaranteed Obligations which any such Guaranteed
Creditor repays to any Borrower pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and the Company waives any right to the
deferral or modification of its obligations hereunder by reason of any such proceeding. The
guaranty and liability of the Company hereunder shall in all respects be a continuing, irrevocable,
absolute and unconditional guaranty of payment and performance and not only collectibility, and
shall remain in full force and effect (notwithstanding, without limitation, the dissolution of any
of Designated Borrowers, that at any time or from time to time no Guaranteed Obligations are
outstanding or any other circumstance) until all Commitments have terminated and all Guaranteed
Obligations have been paid in full.



11.4 Independent Obligation. The obligations of the Company hereunder are independent
of the obligations of any other guarantor, any other party or any Borrower, and a separate action
or actions may be brought and prosecuted against the Company whether or not action is brought
against any other guarantor, any other party or any Borrower and whether or not any other
guarantor, any other party or any Borrower is joined in any such action or actions. The Company
waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting
its liability hereunder or the enforcement thereof. Any payment by a Borrower or other
circumstance which operates to toll any statute of limitations as to such Borrower shall operate to
toll the statute of limitations as to the Company’s obligations under this Article XI.



11.5 Authorization. The Company authorizes the Guaranteed Creditors without notice or
demand (except as shall be required by applicable statute and cannot be waived), and without
affecting or impairing its liability hereunder, from time to time to:



(i) change the manner, place or terms of payment of, and/or change or extend the time of
payment of, renew, increase, accelerate or alter, any of the Guaranteed Obligations (including any
increase or decrease in the rate of interest thereon), any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the guaranty of the Company herein made
shall apply to the Guaranteed Obligations as so changed, extended, renewed or altered;



(ii) take and hold security for the payment of the Guaranteed Obligations and sell, exchange,
release, surrender, realize upon or otherwise deal with in any manner and in any order any property
by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred directly or indirectly
in respect thereof or hereof, and/or any offset thereagainst;



(iii) exercise or refrain from exercising any rights against any Borrower or others or
otherwise act or refrain from acting;


 


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(iv) release or substitute any one or more endorsers, guarantors, Borrowers or other obligors;



(v) settle or compromise any of the Guaranteed Obligations, any security therefor or any
liability (including any of those hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to the payment of any liability
(whether due or not) of any Borrower to its creditors other than the Guaranteed Creditors;



(vi) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities
of any Borrower to the Guaranteed Creditors regardless of what liability or liabilities of the
Company or any Borrower remain unpaid;



(vii) consent to or waive any breach of, or any act, omission or default under, this Agreement
or any of the instruments or agreements referred to herein, or otherwise amend, modify or
supplement this Agreement or any of such other instruments or agreements; and/or



(viii) take any other action that would, under otherwise applicable principles of common law,
give rise to a legal or equitable discharge of the Company from its liabilities under this
Article XI;



it being understood that the foregoing shall not permit any action by the Administrative Agent or
any Lender that is not otherwise permitted by this Agreement or any other Loan Document.



11.6 Reliance. It is not necessary for any Guaranteed Creditor to inquire into the
capacity or powers of any Borrower or the officers, directors, partners or agents acting or
purporting to act on their behalf, and any Guaranteed Obligations made or created in reliance upon
the professed exercise of such powers shall be guaranteed hereunder.



11.7 Subordination. Any of the indebtedness of each Borrower relating to the
Guaranteed Obligations now or hereafter owing to the Company is hereby subordinated to the
Guaranteed Obligations of such Borrower owing to the Guaranteed Creditors, and if the
Administrative Agent so requests at a time when an Event of Default exists, all such indebtedness
relating to the Guaranteed Obligations of such Borrower to the Company shall be collected, enforced
and received by the Company for the benefit of the Guaranteed Creditors and be paid over to the
Administrative Agent on behalf of the Guaranteed Creditors on account of the Guaranteed Obligations
of such Borrower to the Guaranteed Creditors, but without affecting or impairing in any manner the
liability of the Company under the other provisions of this Article XI. Prior to the
transfer by the Company of any note or negotiable instrument evidencing any of
the indebtedness relating to the Guaranteed Obligations of such Borrower to the Company, the
Company shall mark such note or negotiable instrument with a legend that the same is subject to
this subordination. Without limiting the generality of the foregoing, the Company hereby agrees
with the Guaranteed Creditors that it will not exercise any right of subrogation which it may at
any time otherwise have as a result of the guaranty under this Article XI (whether
contractual, under Section 509 of the United States Bankruptcy Code or otherwise) until all
Guaranteed Obligations (other than contingent indemnities and costs and reimbursement obligations
to the extent no claim has been asserted with respect thereto) have been irrevocably paid in full
in cash.


 


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11.8 Waivers.



(i) The Company waives any right (except as shall be required by applicable statute and cannot
be waived) to require any Guaranteed Creditor to (A) proceed against any Borrower, any other
guarantor or any other party, (B) proceed against or exhaust any security held from any Borrower,
any other guarantor or any other party or (C) pursue any other remedy in any Guaranteed Creditor’s
power whatsoever. The Company waives any defense based on or arising out of any defense of any
Borrower, any other guarantor or any other party, other than payment in full of the Guaranteed
Obligations, based on or arising out of the disability of any Borrower, any other guarantor or any
other party, or the validity, legality or unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of any Borrower other
than payment in full of the Guaranteed Obligations. The Guaranteed Creditors may, at their
election, foreclose on any security held by the Administrative Agent or any other Guaranteed
Creditor by one or more judicial or nonjudicial sales, whether or not every aspect of any such sale
is commercially reasonable (to the extent such sale is permitted by applicable law), or exercise
any other right or remedy the Guaranteed Creditors may have against any Borrower or any other
party, or any security, without affecting or impairing in any way the liability of the Company
hereunder except to the extent the Guaranteed Obligations have been paid. The Company waives any
defense arising out of any such election by the Guaranteed Creditors, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy
of the Company against any Borrower or any other party or any security.



(ii) Except as otherwise expressly provided in this Agreement, the Company waives all
presentments, demands for performance, protests and notices, including notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of the guaranty hereunder, and
notices of the existence, creation or incurring of new or additional Guaranteed Obligations. The
Company assumes all responsibility for being and keeping itself informed of each Borrower’s
financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment
of the Guaranteed Obligations and the nature, scope and extent of the risks which the Company
assumes and incurs hereunder, and agrees that the Administrative Agent and the Lenders shall have
no duty to advise the Company of information known to them regarding such circumstances or risks.



11.9 Nature of Liability. It is the desire and intent of the Company and the
Guaranteed Creditors that this Article XI shall be enforced against the Company to the
fullest extent permissible under the laws and public policies applied in each jurisdiction in which
enforcement is sought. If, however, and to the extent that, the obligations of the Company under
this Article XI shall be adjudicated to be invalid or unenforceable for any reason
(including because of any applicable state or federal law relating to fraudulent conveyances or
transfers), then the amount of the Guaranteed Obligations shall be deemed to be reduced and the
Company shall pay the maximum amount of the Guaranteed Obligations which would be permissible under
applicable law.


 


106









 





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



	 	 	 	 	 
	 	ABM INDUSTRIES INCORPORATED

 	 
	 	By:  	/s/ James Lusk
 	 
	 	 	Name:  	James Lusk 	 
	 	 	Title:  	Chief Financial Officer 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	/s/ Kristine Thennes
 	 
	 	 	Name:  	Kristine Thennes 	 
	 	 	Title:  	Vice President 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as a Lender, as L/C Issuer

and as Swing Line Lender

 	 
	 	By:  	/s/ Ronald J. Drobny
 	 
	 	 	Name:  	Ronald J. Drobny 	 
	 	 	Title:  	Senior Vice President 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Syndication Agent and as a Lender

 	 
	 	By:  	/s/ Keith Winzenried
 	 
	 	 	Name:  	Keith Winzenried 	 
	 	 	Title:  	Credit Executive 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	RBS CITIZENS, N.A.,

as Co-Documentation Agent and as a Lender

 	 
	 	By:  	/s/ Christopher Webb
 	 
	 	 	Name:  	Christopher Webb 	 
	 	 	Title:  	Executive Vice President 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH,

as Co-Documentation Agent and as a Lender

 	 
	 	By:  	/s/ Maria Iarriccio
 	 
	 	 	Name:  	Maria Iarriccio 	 
	 	 	Title:  	Authorized Signatory 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Co-Documentation Agent and as a Lender

 	 
	 	By:  	/s/ Eric Frandson
 	 
	 	 	Name:  	Eric Frandson 	 
	 	 	Title:  	Director 	 
	 	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	US BANK, NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Michael P. Dickman
 	 
	 	 	Name:  	Michael P. Dickman 	 
	 	 	Title:  	Vice President 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Frank J. Jancar
 	 
	 	 	Name:  	Frank J. Jancar 	 
	 	 	Title:  	Vice President 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	SOVEREIGN BANK,

as a Lender

 	 
	 	By:  	/s/ Douglas Meyer
 	 
	 	 	Name:  	Douglas Meyer 	 
	 	 	Title:  	AVP 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	BANK OF THE WEST,

as a Lender

 	 
	 	By:  	/s/ Robert Kido
 	 
	 	 	Name:  	Robert Kido 	 
	 	 	Title:  	Vice President 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	PEOPLE’S UNITED BANK,

as a Lender

 	 
	 	By:  	/s/ Francis J. McGinn
 	 
	 	 	Name:  	Francis J. McGinn 	 
	 	 	Title:  	Senior Commercial Loan Officer, SVP 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,

as a Lender

 	 
	 	By:  	/s/ Ari Bruger
 	 
	 	 	Name:  	Ari Bruger 	 
	 	 	Title:  	Vice President 	 



	 	 	 	 	 
	 	By:  	                                              /s/ Kevin Buddhdew
 	 
	 	 	Name:  	Kevin Buddhdew 	 
	 	 	Title:  	Associate 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	COMERICA BANK,

as a Lender

 	 
	 	By:  	/s/ Joey Powell
 	 
	 	 	Name:  	Joey Powell 	 
	 	 	Title:  	Vice President 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	FIFTH THIRD BANK,

as a Lender

 	 
	 	By:  	/s/ George B. Davis
 	 
	 	 	Name:  	George B. Davis 	 
	 	 	Title:  	Vice President 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	PNC BANK, N.A.,

as a Lender

 	 
	 	By:  	/s/ Michael Nardo
 	 
	 	 	Name:  	Michael Nardo 	 
	 	 	Title:  	Executive Vice President 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Jason Alexander Huck
 	 
	 	 	Name:  	Jason Alexander Huck 	 
	 	 	Title:  	VP, Relationship Manager 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	THE NORTHERN TRUST COMPANY,

as a Lender

 	 
	 	By:  	/s/ Ashish Bhagwat
 	 
	 	 	Name:  	Ashish Bhagwat 	 
	 	 	Title:  	Senior Vice President 	 



ABM Industries Incorporated

Credit Agreement

Signature Page




 


 









 





	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON,

as a Lender

 	 
	 	By:  	/s/ Donald G. Cassidy, Jr.
 	 
	 	 	Name:  	Donald G. Cassidy, Jr. 	 
	 	 	Title:  	Managing Director 	 



ABM Industries Incorporated

Credit Agreement

Signature Page